The Eagle: Trinity College Law Gazette Volume 10, Issue 2

100 YEARS OF IRISH LAW

In Collaboration with DU Law Society

INSIDE THIS ISSUE

Women and Jury Duty: A Milestone in Irish Law

Ireland in International Law: A Century of Quiet Diplomacy

A Melancholic Milestone: Irish Law and Irish Language Rights One Hundred Years Later

Senior Editorial Board

Editor in Chief: Doireann Minford

Deputy Editor: Jacob Hudson

Copy Editor: Ciara Hogan

Public Relations Officer: Amy Cox

Junior Editorial Board

Alex Coghlan

Aoife Doheny

Arielle Hillock

Chloé Asconi-Feldman

David O’Sullivan

Elena Hernandez

Jenny Salmon

John Lonergan

Kate McGinnity

Matthew Keeley

Michael Gormley

Nazar El-Basheir

Nóra Collins

Oisín Moore

Sarah Jones

Síofra O’Donoghue

Winta Solomon

The Eagle: Trinity Law Gazette tcdeagle tcdeagle

The Eagle: Trinity College Law Gazette

https://eaglegazette.wordpress.com

The Eagle staff endeavour to practice ethical journalism and promote integrity in its work. The Senior Editorial Board reserves the right to publish only those articles that they regard as accurate and not injurious. We cannot guarantee that every article submitted to our publication will be published. All opinions expressed are those of the author and do not necessarily represent the views of the staff, students, or administration of Trinity College Dublin.

Letter from the Editor

A Chairde,

It has now been 10 years since The Eagle: Trinity College Law Gazette was founded. To mark this occasion we have collaborated with DU Law Society who are also marking their 90th anniversary on this thematic issue focusing on the milestones in the past 100 years of Irish law

It was a pleasure to collaborate with DU Law Society on this issue to recognise the enduring nature of both student societies and publications. For the past 90 years, Law Soc has endeavoured to promote discourse and enrich the student life through their organisation of various events The Eagle was founded 10 years ago and aimed to act as an accessible way to both write and read about the law and its intersection with various parts of society We have produced at least one issue a year since its founding Of particular note is that even in the face of crises like the COVID-19 pandemic, Law Soc and The Eagle continued in their respective missions, showing the resilience of the students involved in their organisation I would like to thank the Law Society for collaborating with us, and in particular, the auditor Eoin Ryan for all his help in bringing this issue to life

As part of this collaboration, we held a competition that awarded a prize for the best submission to this issue. The winning article took the approach of highlighting the lack of milestones in relation to the protection of the Irish language in the past 100 years This issue includes articles that showcase breakthroughs

Deputy Editor: Jacob Hudson

Copy Editor: Ciara Hogan

PRO: Amy Cox

both in LGBTQ+ and women’s rights However, throughout this issue, one should be mindful that with great strides in development; there have also been drawn-out periods of stasis – resulting in the perhaps obvious observation that Irish law still has milestones to reach In particular, the upcoming referendum on March 8th is indicative of the continuing development of Irish law and a chance to reach a milestone by re-wording outdated provisions of the Constitution that have no place in a modern, Irish society.

I would once again like to thank our sponsor Maples and Calder (Ireland) LLP, especially Ciara O’Brien, their HR Business Partner, for their generous financial support in funding the gazette Maples and Calder have kindly sponsored The Eagle since Volume 7 and without them, the publication or running of the gazette would not be possible

The diligent work of both the Junior and Senior Editorial Board must be noted They worked very hard over the break to help edit and perfect the articles contained in this issue

Finally, I would like to thank our two interviewees: Clare Kelly, the founder of The Eagle and Mark Garrett, DirectorGeneral of the Law Society of Ireland for taking the time out of their busy schedules and agreeing to be interviewed.

It is my hope that 10 years from now, when I and the rest of the editorial board members are long gone from Trinity, The Eagle will be celebrating its 20th anniversary and continuing to inform and encourage accessible discourse on the legal field. I am now delighted to present to you Volume 10, Issue 2 and hope that you, the reader, enjoy it.

Le gach dea-ghuí, Doireann Minford

Editor-in-Chief

The Eagle: Trinity College

Winner of The Eagle and DU Law Society’s Article Competition “100 Years of Irish Law”

A Melancholic Milestone: Irish Law and Irish Language Rights One Hundred Years Later

By Lawrence Valentine Murray, JS Law

Introduction

Since becoming an independent nation, Ireland has held Irish up as the national language alongside English, with it being enshrined as such both in the Free State constitution and now the current constitution The desire to revive Irish as the primary language of Ireland, expressed first by the Gaelic League, gained steam in the early twentieth century. And yet, one hundred years later, the Irish language is in the worst condition it has ever been, with less than 2 per cent of the country now using the language daily and only 10 per cent of those who can speak it at all claiming fluency.

In this article, we will focus on one particular area involved in reaching this sad milestone: namely, how the government over the past 100 years has failed to effectively utilise the law to revitalise the Irish language. For our purposes, we will divide the last one hundred years into three periods; 1922-1969, 1970-2002, and 2003-2022 We will lay out the main legislation and cases from these periods in order to see why, after 100 years of legal developments, Irish remains a dying language.

1922-1969

One would expect the period immediately following independence to be full of case law and legislation regarding the position and promotion of the Irish language The Gaelic League had been established less than 30 years prior and many TDs, along with some Ministers, had been or still were members. Indeed the first President of the new state, Douglas Hyde, was an avid supporter of reviving the Irish language However, what quickly emerged (and what this period is most notable for) is the bandying of lofty sentiments and proposals with little real change enacted. Policy-wise the state started by establishing the Gaeltacht Commission in 1925 which then went on to make proposals for how to revive the language. Most of these were turned down by the new

government, citing economic concerns One of the major points that was ignored was making Irish a necessary requirement for administrators working in the newly established Gaeltachtaí. This led to many native Irish speakers being unable to avail of public services, essentially forcing them to learn and use English

The courts were relatively inactive during this period regarding Irish but there were some signs of promise, especially compared to the floundering of the other branches of government. In Ó Foghludha v McClean, it was held that public facilities and services were to be available in both Irish and English to ensure that there was no disadvantage regardless of the language used However, in Attorney General v Coyne and Wallace, the court went on to hold that unless the Oireachtas explicitly made provision for it, either language could be used exclusively for official purposes.

1970-2002

The courts went on to hear more cases regarding Irish language rights over the next three decades. However, language activists would be disappointed with the mixed results they would receive. Cases such as MacCárthaigh v Éire, Ó Monacháin v An Taoiseach, An Stát (Mac Fhearraigh) v Neilan, and Ní Cheallaigh v An t-Aire Comhshaoil made it clear that while the court was willing to acknowledge the place of Irish in the Constitution, they were not willing to afford it the same practical usage as English or award it protected cultural status. Despite some discussion in cases from this period exclaiming the importance of the Irish language, the Courts were mostly content to allow the Oireachtas to do as it saw fit regarding policy surrounding Irish

Legislatively things fared little better. Despite Irish having been made a core subject in schools in 1922, the number of people with Irish as a first language

continued to decline throughout the twentieth century. Although knowledge of Irish became more widespread on paper, actual competency declined. Much like in the earlier period, no major legislation was passed to solidify any concrete language policy.

[I]t is disappointing

that the best the Irish state was able to do for the national language over almost eighty years was to set up an Irish radio and TV station.

There was some notable success, however Raidió na Gaeltachta began broadcasting in 1972 and has maintained a steady level of popularity. TG4 launched in 1996 and has only become more popular since then. However, while these are certainly praiseworthy achievements, it is disappointing that the best the Irish state was able to do for the national language over almost eighty years was to set up an Irish radio and TV station. While they have contributed to keeping some degree of fluency alive, they were hardly the drastic measures necessary to u-turn the rapid decline.

2003-2022

2003 saw a first in Irish history as a major piece of legislation, the Official Languages Act 2003, was finally passed in the hope of increasing the use of Irish in the public sector. Generally, Irish was to be afforded the same status as English in terms of usage in public documents and business. Some minor aspects of the Act made Irish stronger in terms of its legal position than English This was a welcome improvement to the position of the Irish language However, like much of the government action taken before, implementation and enforcement was slow in coming. This resulted in a 2011 review of the Act to

determine what could be improved Ten years later the Official Languages (Amendment) Act 2021 was signed into effect. Unlike previous legislation, the 2021 Act set goals and quotas to meet. Twenty per cent of all public service positions are to be filled by Irish speakers by 2030. In addition to legislation, in 2010 the government had also set the policy goal that by 2030 it would increase the number of daily Irish users to 250,000 In 2010 the review group had estimated there were about 83,000 speakers. At the time of writing this article that number stands at around 73,000.

Over the past two decades, the courts have seemed to view the Irish language as having a ‘more official’ position In Peadar Ó Maicín v Éire, it was ruled that Irish was entitled to certain protections by the state and that the state had obligations to promote it. This was balanced by the court ruling that one was not entitled to a jury that spoke Irish. This recognition that the state has an obligation regarding Irish language rights has been recognised in some other more recent cases such as Ó Cadhla v The Minister for Justice and Equality, though this recognition has varied. Overall, the court's position has mostly been one of deference to the other branches rather than one of active enforcement.

Conclusion

Having laid out the actions taken by the state over the past 100 years, it should be clear why this article was written in English and not Irish. The law regarding Irish has been disjointed and unclear at its best and actively hostile at its worst. Successive governments and courts failed to enact and enforce any obligations regarding the language and any actions that have been taken have floundered After 100 years of legal development, the law in this area has hit a notable milestone. It has resulted in the lowest numbers of fluent Irish speakers in history.

Women and Jury Duty: A Milestone in Irish Law

By Aoife Doheny, JS Law

Introduction

Thomas Jefferson once wrote that “trial by jury is the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution ” The jury trial has been held up throughout history as the paradigm of justice. Instead of subjecting defendants to the scrutiny of an imposing judicial figure, we give them a chance to be judged by their fellow peers and community. Examining the history of juries in Ireland, it is clear that the automatic eligibility granted to women with the introduction of the Juries Act 1976 should be seen as a milestone. The inclusion of women on juries was transformative due to the way it recognised and to some extent fulfilled the need for diversity in the makeup of juries.

This article will first trace the history of women as jurors in Ireland It will then turn to consider the importance of the 1976 Act in bringing us one step closer to realising an ideal of justice which reflects representation, impartiality and democracy. With jury trials increasingly falling out of use in Ireland, it is important to look back on the significant efforts made to introduce and improve them in our society.

Part I examines the history of women as jurors in Ireland, while Part II argues that (i) representation, (ii) impartiality and (iii) democracy are three key aims of jury trials. The reason that the 1976 Act is such a milestone in Irish law is that it brought us one step closer to realising an ideal of justice which reflects these values

I. Women and Juries

The inception of jury trials is usually traced back to the Norman conquest of Britain in the eleventh century. About 100 years later, this system was exported to Ireland, gradually replacing the ancient Brehon traditions of the native population. However, in part due to widespread opposition to colonial interference, jury trials failed to take root here until many years later.

These days, trials by jury are an undeniable cornerstone of our criminal justice and constitutional legal system Having been enshrined in the Irish Constitution in 1937, the importance of a legitimate jury system lies in the fact that it can serve as a

bulwark against injustice. In The People (DPP) v O’Shea, Mr Justice Henchy highlighted its role in preventing “summary trial or detention without trial, cat-and-mouse releases from such detention, packed juries and sometimes corrupt judges and prosecutors.” Under applicable Westminster law, women who met the necessary property requirements began serving on Irish juries in 1921, and by 1923 made up about 33 per cent of the eligible juror population in Dublin By 1927, however, the Minister for Justice of the time, Kevin O’Higgins, had completely reversed what he viewed as an unsuitable spillover from English law by introducing a Juries Act which automatically exempted all women from jury service.

It is important to note that women had the choice to opt into the system As Chief Justice O’Higgins pointed out in De Burca and Anderson v Attorney General, each woman could technically make the choice for herself about whether or not to participate in civil society in this way. In practice, however, the effects of automatic exemption were stark, as only two women served as jurors in the ten years preceding the introduction of the 1976 Act This automatic exclusion was a form of “othering” which contained the implicit assumption that women are either unwilling or incapable of fulfilling civil roles in the same way as men. A new status quo had been established which was only dislodged via a court ruling and the introduction of new legislation.

II Why are juries so important?

Representation

According to Lord Denning, “12 persons selected at random are likely to be a cross-section of the people as a whole and thus represent the view of the common man.” However, randomness can hardly equate to representation when one-half of society has as their starting point a complete exemption from this civic duty

Putting women on the same footing as men with regard to jury service meant that representation was fully realised in law for the first time. While social, cultural, and financial barriers may still prevent accurate demographic representation, there are no remaining legal barriers to serving on the basis of gender. This is something to be celebrated, as it leads

to a greater reflection of society in the courtroom

Impartiality

Another key feature of juries is their independence from the disputing parties. As lay people, what they offer to the court is the sum total of their knowledge, skills, and experience as ordinary citizens This gives them a legitimacy which differs from that of judges, who are solely appointed by the Government

Tying in closely with the benefit of representation, the broader selection base resulting from the mandatory inclusion of women has increased the possibility of diversity in the composition of juries This potentially minimises the effects of bias which might occur if only a certain class and gender were allowed to judge their peers.

Democracy

Involving all ordinary citizens in the jury process is a vital way of exposing the legal system to outside scrutiny, and also ensures that all have the opportunity to participate in our constitutional democracy on an equal footing. As former Masachucettes Attorney General Dwight Foster put it in 1882, the public nature of jury trials is important to maintain the “purity” of the judicial system.

Furthermore, juries uphold constitutional democracy

by furthering the checks and balances principle of the separation of powers If women are to be true democratic citizens, they should be able to participate in this balancing action in the same way as men.

Finally, juries have strong traditions of voting in line with conscience rather than law Injecting this element of subjective morality into the legal system has a tempering effect on the rigidity of rules Again, inclusion is key here: varying social backgrounds may lead to different ideas of conscience which can only be fully enjoyed when all groups in society can participate equally in the jury process.

Conclusion

Introducing automatic eligibility for women was a watershed moment for our jury system. Being tried and judged by peers who are your equal in society lends a sense of legitimacy to criminal justice proceedings. The legal system, so cloaked in jargon and at times seemingly far removed from an ordinary understanding of justice, can only benefit from the injection of transparency via randomly selected lay people. As argued above, this injection can only inspire trust when it is impartial, representative and democratic. Increasing our jury selection pool to automatically include women has helped make it so, and therefore should be celebrated as a milestone.

100 Years in Irish Law: The Legalisation of Contraception in Ireland

By Nóra Collins, JF Law and History

McGee v Attorney General is renowned as a landmark case in Irish legal history, which has proven to be a watershed moment for women’s rights in Ireland. It affirmed that married women had a right to contraception, and brought to a head the issues around the reproductive rights of women in Ireland, including access to abortion The legal outcome of McGee led to the introduction of the Health (Family Planning) Act, 1979 by the Oireachtas, which was to revolutionise healthcare for Irish women, with far-reaching social implications.

Historical Background

Mary McGee was the mother of four children. She had a medical condition, which became so severe that her doctor advised her that any further pregnancies could be “attended with fatal consequences.” To prevent this, Mrs McGee was fitted with a diaphragm, a form of barrier contraception, which worked with a

spermicidal jelly She was given a quantity of jelly by her doctor but eventually had to order more from outside Ireland. Customs seized the package, causing Mary to bring a case to the High Court.

It can be difficult to imagine many aspects of Irish society as it was in the 1960s and 1970s, particularly in relation to women’s rights Access to contraception was heavily restricted, almost to the point of a total ban. Under Section 17 of the Criminal Law Amendment Act, 1935, it was not illegal to use contraceptives, but it was illegal to import or sell them. Since the enactment of the 1935 Act, the Catholic Church had been staunchly opposed to any easing of the law restricting this access Archbishop John McQuaid published a pastoral letter in 1971 entitled “Contraception and Conscience” in which he said that to allow contraceptives “would, without question, prove to be gravely damaging to morality,

private and public; it would be, and would remain, a curse upon our country ” The Church’s influence on public policy during this period cannot be overstated. In 1971, 95.4 per cent of the population were Catholic, and Catholic social teaching had been pervasive in all aspects of the state since 1922. As a result, Catholic doctrine on social issues was rarely publicly challenged

Nevertheless, McGee did not take place in a social vacuum. The Irish Women’s Liberation Movement (IWLM) emerged in 1970 to challenge gender stereotypes, which, as articulated by leading member Mary Maher, “are all right for stage plays, pageants processions with incense and organ music.” The group staged numerous protests against the contraception laws in Ireland. One instance involved a large group of women visiting Belfast by train and buying contraceptives before informing the Irish Customs Authorities upon their return to Dublin, where they were received by the press and hundreds of IWLM members These protests demonstrated that Irish society and its perception of women’s rights was changing in the 1970s. Nevertheless, the success of McGee was still surprising to many.

The McGee Proceedings

In the High Court, Mrs McGee sought a declaration that Section 17 of the Criminal Law Amendment Act 1935 was unconstitutional, on the basis that the Act infringed her right to privacy

The case was undoubtedly difficult for the McGee family. On the opening day, Mrs McGee was asked whether she and her husband “should live as brother and sister … and look after the young children.” She responded: “We are only human Religion is important, but [w]e are husband and wife, and we cannot live as brother and sister ” Later, Mary’s husband was asked if he would like to see his wife using contraceptives. He replied: “I’d prefer to see her using contraceptives than be placing flowers on her grave”. President of the High Court, O’Keefe P, ultimately disagreed with McGee’s argument and held that Section 17 was fully constitutional

Mary McGee thereafter successfully appealed to the Supreme Court. Henchy J found that Section 17 violated Mrs McGee’s rights. In doing so, he presented the inherent dilemma for women in Ireland at the time:

If she observes this prohibition … she will endanger the security and happiness of her marriage, she will [risk] her health to the point of hazarding her life… If she fails to obey the prohibition in Section 17, the law by prosecuting her will reach into the privacy of her marital life in seeking to prove her guilt.

Though the Supreme Court ruled in favour of Mary McGee, it is important to note that the Court did not disagree with the principle of a law banning the importation and sale of contraceptives; it came to its conclusion only because Mary McGee was married and therefore had a right to marital privacy. As one commentator articulated, “Mary McGee won her court case not because she was Mary McGee, but because she was Mrs McGee ” The impact of the McGee decision was therefore limited, having failed to fully challenge the Christian nature of the state that had led to the ban in the first place.

The Impact of McGee

That being said, the decision transformed the political debate around contraception As John Whyte commented, “[t]he question was no longer whether the law should be relaxed. The law was relaxed.” In 1979, Minister for Health Charles Haughey said that he had found “an Irish solution to an Irish problem.” This was the Health (Family Planning) Bill a highly restrictive statute, which allowed married people to buy contraceptives only for adequate medical reasons, or for the purpose of family planning.

Legal developments in the United States also helped to shape the impact of McGee in the Irish setting. The right to marital privacy had been upheld in Griswold v Connecticut (1965), a US Supreme Court decision, which found that the right was protected under the US Constitution. According to The Irish Times, commenting on McGee:

The single common denominator in the four judgements of the majority and, consequently, the key ruling in the case, was that the Constitution protected the right of marital privacy. That a similar right had been conceded to exist under the United States Constitution undoubtedly influenced the result.

The importance of Griswold was reiterated in the 1973 decision of Roe v Wade, which extended that right to privacy to encompass a woman’s decision to have an abortion.

Anti-abortion groups in Ireland feared that liberal judges would follow the example of the United States in Roe and allow women to obtain abortions in Ireland This fear drove campaigners to push for a “pro-life” amendment to be inserted into the Constitution. The referendum on the Eighth Amendment took place in September 1983, and passed with a 66.9 per cent majority “It [the McGee decision] certainly was a catalyst for the pro-life amendment campaign…”, said Ivana Bacik, TD. She

continued, “So McGee has had a huge influence - not just in furthering women’s rights but, ironically, I think, in setting them back.”. It is clear therefore that McGee had an enormous impact on Irish society, particularly for women, though not exclusively in the direction of liberalisation.

Conclusion

The McGee decision is arguably the most significant the Irish Supreme Court has made in the last 100 years. It demonstrated to the Irish people that the Constitution could be a tool for social change, and that important socio-economic freedoms could be

vindicated through litigation The judgement had consequences far beyond Mary McGee Its outcome led to married couples in Ireland being able to access contraception by 1980 and set Ireland on course to become the society it is today, one that is a far cry from the situation Mrs McGee faced in the early 1970s Since September 2022, all Irish women aged 17-25 have been entitled to free contraception. As Gerard Hogan, distinguished legal commentator and now a judge of the Supreme Court, said, “[t]he decision in McGee started a social revolution, the consequences of which are still being played out.”

The Evolution of a Woman’s Role in the Family: 100 Years of Irish Law

By Chloé Asconi-Feldman, JS Law and History

Throughout Irish history, the role of the family has been continuously significant, and it remains central to social and policy discourses in the current era. It has also been a subject of Irish law and history that has changed dramatically over the past 100 years This article will examine the evolution of a woman’s role in the family, over the last century It will begin by setting out the modern role of women in the family, before analysing major legislative changes impacting the freedom of women in the family setting. Finally, it will touch on subjects that are still the ongoing subject of legal reform regarding a woman’s place in the family

Current Status of Women in the Family

Globally, recent figures indicate an employment rate of 82.8 per cent among women living alone compared to a lower figure of 64.3 per cent, among women who are married or in a relationship. This relatively high rate of labour market representation is significant, especially given the fact that the employment rate of men in a couple with no children is only a few percentage points higher, at 91.5 per cent. However, this reality did not always exist. It was only in 1973, that the ban on married women working was lifted through the implementation of the Civil Service (Employment of Married Women) Act This measure was taken comparatively much later than in other countries For example, the Netherlands lifted its marriage bar in 1957, and Australia took the same path in 1966. The Irish delay reflects the traditional view of women in the family that Irish law has promoted through various forms of legislation.

Historical Role of Women in the Family

Throughout Irish history, when a woman was married she was transferred to her husband as if she were an object, through property rights. At this moment, she handed over to her husband her bodily autonomy, personal property, and kinship rights, as if they were also possessions It was not until the Married Women’s Property Act 1882, that women were enabled to own their own property once married. In terms of bodily autonomy, a married woman's husband could do as he chose to her, including committing physical harm through his right to “chastise” her He also had full entitlement to her body, whether she was willing or not since the law did not yet recognise marital rape. This only changed in 1990, through the implementation of The Criminal Law Rape (Amendment) Act, which finally recognised the idea that if a husband had nonconsensual sex with his wife, this would constitute rape

Additionally, all of a wife’s personal property became her husband’s, and her leasehold property was vested in him, which he could dispose of without her consent This law governing descent on intestacy, which refers to dying without a legal will, was abolished via the Succession Act 1965 A woman’s children from her marriage were also considered her husband’s possessions, meaning that he had the absolute power to take his children from their mother, without her having any means of seeking redress. Upon reflection, this legislation pre-Succession Act seems outrageous, given the fact that it is the woman who gives birth to

her children These archaic laws symbolise to a great extent the way the Irish Government and lawmakers viewed women in society at the time. Overall, these examples highlight the fact that it was only in the last century that women began to have freedom over themselves and their property.

One major legislative change that occurred in the last century is the reform of the law regarding divorce, something that has historically faced disapproval in Irish society. There was a Constitutional ban on divorce in Ireland up until 1996. Yet, before this, there was a policy in place under which the State would recognise foreign divorce decrees A husband had the power to acquire a divorce on his own if he was domiciled in a foreign country, notwithstanding the fact that his wife may have never set foot in the country. Unsurprisingly, a wife did not have the power to do this. If she were to attempt to do this, her previous marriage would still be recognised under Irish law, and her husband would be able to claim her property upon her death due to his right as a spouse It was only upon the passing of the Domicile and Recognition of Foreign Divorces Act 1986 that the power to divorce in another jurisdiction became equal.

It was 1981 under section 1 of the Family Law Act 1981, that abolished the law of criminal conversation. Criminal conversation is essentially a civil claim for adultery, yet what made this more problematic was that it allowed a man to seek damages against someone who engaged in sexual activity with his wife, yet again the opposite was not applicable to a woman attempting to seek damages for the actions of her husband. When a case of criminal conversation was brought to court, a wife could not testify herself or call a witness to speak for her Therefore, she was helpless if accused Although this law did not bring many cases before the Irish courts, it reinforced the idea that a woman was her husband’s property. Certain academic commentators have presented the argument that the law was put in place to show how valuable a wife was Yet, it is clear from an analysis of the overall treatment of women in Irish law during this time, that to claim that this law was a form of flattery for women is unjust. Instead, it demonstrates that a marriage partnership in Ireland was not a union based on equality, but on legal hierarchy. Criminal conversation was finally abolished by the Family Law Act 1981

Ongoing Challenges and Reforms

Despite the fact that the last century provided many new rights for women, especially in the family setting, there are still areas that remain outdated. Most notable is Article 41.2 of the Irish Constitution, which has received both national and international level calls for its amendment or removal The article recognises a woman’s life and job within the home Yet, academic debate has ensued over whether the contents of Article 41.2 are sexist and obsolete or not. Some state that this article is offensive in denying a woman’s freedom of choice, particularly since the Constitution places no corresponding duties on fathers. Hogan J, writing extra-judicially, has stated that the article is “wholly unsuited to modern conditions.” Another school of thought believes that this article should be read as a tribute to the work being done by women in the home as mothers. Although this recognition is important, unfortunately, Article 41.2 introduces many consequences since it places an expectation on women to carry out their traditional gender roles such as housework and childrearing while also in employment This could encourage women to quit their jobs once married and limit their freedom of choice. There will be a referendum in March 2024 on whether to replace this Article with Article 42B recognising family care, which demonstrates that attaining equality for women in Ireland, especially in the family setting, is still an ongoing process

Conclusion

It is undeniable that the past century in Irish law has seen many changes in the position of women in the family., Women were historically seen as subordinate in this role However, some improvements have been made to this status during the last 100 years Having reflected on women becoming more equal to their male counterparts in the family, it will be interesting to see how this continues to evolve, especially through the referendum on Article 41.2, and its proposed replacement. Despite the developments in the past century towards recognising women as independent beings and not just the property of their husbands, it is clear that there is still room for progress and that in light of the changes, we must continue pressing for justice, equality, and opportunity for women.

100 Years of Irish Law - Still No Equality Between Unmarried Parents

By Luke James Gibbons Jnr

LL.B. (Dub.) (aur.num.), BCL (Oxon) (Dist.) (Hon.Sch.) Ph.D. Candidate and Irish Research Council Scholar at Trinity College Dublin Fulbright Scholar and Visiting Researcher at Harvard Law School

Over the past 100 years, Irish law has progressed to reflect the values held by contemporary society. Developments such as the legalisation of contraceptives, the introduction of divorce and marriage equality, and the Repeal of the Eighth Amendment are some such examples that spring to mind. A common theme is a departure from Catholicism and Thomistic philosophy in Irish law. However, in 2023, inequality prevails between the guardianship rights of unmarried fathers and mothers as a result of anachronistic judicial cognition. Reflecting upon 100 years of law-making, it is important to applaud achievements but also to highlight continued failings and the necessity for the law’s evolution.

The Questionability of the Natural Law Justification

As held in State (Nicolaou) v An Bord Uchtála and affirmed in G v An Bord Uchtála, an unmarried mother has an unenumerated right to guardianship of her child. This was founded upon natural law justifications under Article 40.3. In Nicolaou, Walsh J outlined that a corresponding right does not exist for the unmarried father as this “has never been recognized [under] natural law ” Continual judicial reiterations of this gendered distinction, such as in W O’R v E.H., exacerbate the need to question the Nicolaou judgement’s reasoning and its appropriateness in modern Ireland.

Firstly, the validity of the natural law basis of this gendered distinction is contentious because the mother’s right was judicially enumerated and not founded upon Article 41 which envisages familial “institutional rights” as “superior to…positive law”. Secondly, Walsh J’s distinction is based on Thomistic philosophy and not reflective of norms in modern Ireland. This is argued as although not highlighted in Nicolaou, in other judgments Walsh J has espoused an overarching Thomistic conception of natural rights In McGee v Attorney General, for instance, Walsh J grounded natural rights upon, “Christianity…and the reference to God in Article 6.”

Thirdly, natural law justifications for rights enumeration are not reflective of contemporary judicial cognition In Re Article 26 (Termination of Pregnancy), the Supreme Court stated that the courts “at no stage recognized…natural law as superior to

the Constitution.” Judicial disaffection with Thomistic superiority is also noted in N and Another v Health Service Executive In that case, Hardiman J mused the possibility of serving the child’s best interests with the natural parents in contrast to previous jurisprudence, which prioritised the parents’ marriage. However, matrimonial superiority is still operative as held in Northwestern Health Board v H.W.

This lack of resultant change, stemming from judicial disquiet with the natural law basis of the distinction between marital and non-marital parents, may be explained by the special constitutional position given to the “family based on marriage.” However, the same does not explain the gendered disparity between unmarried parents. It must be questioned why the judiciary has not altered this judge-made dichotomy It is originally posited that by virtue of judicial discontent with natural law and the abandonment of the unenumerated rights doctrine, the judiciary has inhibited itself for want of avoiding self-contradiction. Effecting egalitarianism between unmarried parents would involve the employment of natural law and the unenumerated rights doctrine to ground the father’s equal right

Bloodlink – Sufficient for One and Not the Other?

In Re SW Finlay CJ outlined another rationale for the distinction, which was that “the blood link between the unmarried father and child is insufficient to grant guardianship.” However, one must question what then distinguishes a natural mother’s connection from a natural father’s to justify this rights disparity. As alluded to in G v An Bord Uchtála, some have reasoned that Walsh J’s distinction was implicitly based on recognising gestation. This recognition provides scope for differentiation and compliments the (albeit outdated) “maternity” rationale of Article 41 2

Nonetheless, subsequent to MR v An t-Ard Chláraitheoir, this reasoning is questionable. In the High Court, Abbot J reasoned that the law did not recognise the principle of mater semper certa est (birth mother is certain) and that the “deterministic quality of DNA” outweighed “gestational epigenetic changes ” Thus, the natural mother’s bloodlink conferred guardianship over that of a gestational surrogate. This explicitly conflicts with the

“nondeterministic” status of the natural father’s bloodlink and suggests that this distinction is unjustly gendered. However, MR was reversed on appeal, with Denham CJ stating that mater semper certa est has never been part of Irish law and that the reversal was due to the necessity for surrogacy legislation. Denham CJ seemingly envisaged the legislature would give weight to the natural mother’s bloodlink.

However, in Ireland’s Assisted Human Reproduction Bill, both of the natural parents of a surrogate child must apply for post-birth guardianship orders, with the natural mother not receiving automatic guardianship One may posit that this mechanism equates parental rights However, this legislative intervention gives undue weight to the gestational justification of Walsh J’s rights distinction and contradicts the assertion of Denham CJ that mater semper certa est is not part of Irish law. This is because, under the Bill, the gestational surrogate is given automatic guardianship, even though she has no genetic link to the child The only distinguishing factor between the gestational surrogate and the natural mother is the gestation period.

Specific Illustrations Justifying a General Distinction

Walsh J also grounded the distinction between married and unmarried fathers upon the likelihood of rape in non-marital relations This mirrored the views of a society in which non-marital sex was shunned. However, Walsh J’s rationale presents a legal irony as marital rape was not criminalized until the Criminal Law (Rape) Act 1990. Furthermore, the reasoning of rape to justify a general rule is questionable.

Similar specific justifications for the distinction can be noted from W O’R v E H , which held that the emergence of the practice of artificial insemination strengthens the distinction. Some submit that this encapsulates the reason why natural fathers cannot have automatic rights. However, the instance of an ovum donor being determinative of general nonautomatic guardianship rights of all unmarried natural mothers is unthinkable Again, one questions why this has rationalised the converse for unmarried natural fathers.

Impact on the Caring Unmarried Father

These archaic values reflect a bygone Ireland and significantly impact the caring unmarried father. This was highlighted by Barrington J in W. O’R v E.H., conveying that Irish law does not recognize the “father who has stood by his child.” However, more recently in McD v L, the courts have accounted for the caring role of unmarried fathers Yet this piecemeal recognition is not acceptable The unmarried father can apply for guardianship and an argument can be made that this assists the father. However, arguably this disparity between nonmarital parents is in contravention of obligations under Article 18 of the UN Convention on the Rights of the Child, which states that “best efforts” should be made to involve both “natural parents” in their child’s life Continuing this anachronistic distinction between unmarried natural parents is hardly using “best efforts” to involve both parents in the upbringing of their child.

Future Change is Needed

The special constitutional status of marriage is what distinguishes unmarried and married fathers To dispel this inequality, the special constitutional standing of matrimony should be displaced. This may occur in March 2024 with the proposed Thirty-ninth Amendment of the Constitution (The Family) Bill 2023, which would revise the familial definition to include durable relationships outside of marriage

As to the distinction between unmarried parents, legislation should be implemented to ground automatic guardianship to both with an exception for surrogate mothers. A broad presumption of paternity may put undue burdens on mothers to rebut. However, the Law Reform Commission’s proposal should be implemented, which would create automatic joint guardianship unless an ex-ante objection is raised by the natural mother. This recommendation still entrenches a preference for the natural mother. However, it provides a middle ground by giving a caring father his own set of rights, while also ensuring the welfare of the child

These archaic values reflect a bygone Ireland and significantly impact the caring unmarried father.

Céad míle fáilte romhaibh? Consequences of the 27th Amendment

By Louise Cullen, SS Law and Political Science

Introduction

Eric Zhi Ying Xue made headlines in 2018 when he was threatened with deportation from Ireland. Eric was 9 years old at this time; he had been born in Dublin, attended school in Bray, and had never lived anywhere else but Ireland. Eric's mother had arrived in Ireland in 2006 from China; despite exhausting all legal avenues to regularise her residency, her final appeal was refused after 12 years. The result of this was that Eric, despite not having Chinese citizenship nor being able to speak Chinese, faced being sent to China If deported, he would not have been able to access healthcare or education.

Eric’s situation was met with public shock and confusion. How could this boy, described as “quintessentially Irish”, be shipped out of Ireland without a backward glance from the authorities? The answer lies in Ireland’s 2004 referendum on citizenship.

21st-century referenda

For the most part, Irish referenda reflect a trajectory of modernisation and liberalisation In less than thirty years, Ireland has transformed from a country that criminalised homosexuality to one that ushered in marriage equality by popular vote. The Irish people have, in the 21st century, chosen to end the prohibition on abortion, to allow more relaxed rules surrounding divorce, and to remove the crime of blasphemy. There have been some conservative outcomes, such as the defeat of a proposal to lower the presidential age restriction, but the majority of recent constitutional amendments exhibit a trend of tolerance and an Ireland that is keen to allow people to live as they choose.

However, there is one legal milestone that does not chime with this narrative of inclusion and progress: the Irish citizenship referendum in June 2004. Prior to this, Ireland operated under a jus soli arrangement, meaning that anyone born on the island of Ireland was automatically granted Irish citizenship at birth. The insertion of the 27th Amendment ended this regime, instead providing that anyone born in Ireland without "at least one parent who [was] an Irish citizen or entitled to be an Irish citizen [was] not entitled to Irish citizenship or nationality unless provided for by law.” Ireland chose, by an immense majority of 79 per cent,

to restrict the provision of citizenship, with the direct consequence of situations such as the one Eric faced.

Background

Prior to the 27th Amendment, Ireland was the only EU Member State to automatically grant citizenship at birth. The citizenship clause was inserted into the Constitution as part of the Belfast Agreement and increased the number of people travelling to Ireland to give birth The 2004 referendum was initiated due to concerns that people were “gaming the system” to receive Irish and EU citizenship Proponents of a constitutional amendment frequently invoked Case C200/02, or the “Chen” case, as an example of the “abuse” of the Irish regime.

Ms Chen was an English resident but did not possess British or EU citizenship When she became pregnant, Ms Chen moved to Belfast and gave birth there, enabling her daughter to become both an Irish and an EU citizen. The English authorities sought to deny Ms Chen’s re-entry to the UK, but the European Court of Justice held that Ms Chen was allowed to remain within the EU in order to allow her child to exercise rights flowing from her EU citizenship Public outrage stemmed from the fact that Ms Chen admitted to relocating to Belfast with the principal intention of her child obtaining EU citizenship. Ms Chen’s case was used to argue that a huge amount of people were using Ireland solely as a means of obtaining valuable EU citizenship, or at least the right to reside within the EU, with the result being an influx of people who had not “earned” the right to be Irish

While there were legitimate reasons for modifying the Constitution, it would be erroneous to ignore the nationalistic overtones surrounding the 27th Amendment. The build-up to the referendum produced much discourse pertaining to the idea of asylum seekers as a drain on the national population. Supporters of change spoke of providing citizenship to only “those who truly belong” and those who were “worthy”, with the implicit flipside of withholding citizenship from those who were “not properly ‘one of us’”.

In what opponents to the constitutional amendment viewed as a display of fear-mongering, Michael McDowell, Minister for Justice at the time, presented

the public with misleading figures that claimed to show more “foreign” women were giving birth in hospitals than “Irish” women. However, claims about maternity hospitals being overrun were not evidenced by credible statistics, which was highlighted by opposition parties and healthcare professionals. In particular, hospitals claimed that they had never requested a more restrictive citizenship regime, despite McDowell presenting the proposed amendment as being of benefit to Irish healthcare services.

The referendum was expedited to coincide with local and European elections, resulting in inadequate public discussion of the amendment and no consultation with the opposition or other advisory groups It has since been criticised by the Irish Human Rights and Equality Commission and other parties for not having been sufficiently debated prior to being presented to the electorate.

Perhaps the misleading statistics and the rushed amendment would be excusable if appropriate provisions had been made for those seeking Irish citizenship. However, as Eric’s situation shows, the Oireachtas have declined to produce legislation clarifying the status of non-Irish nationals and their children. In 2018, in response to Eric’s situation, the Labour Party introduced a private members bill that would give citizenship rights to the children of nonnational parents if they were both born in Ireland and had lived there for more than three years. This was soundly rejected by the Government at the time, and there has been little progress since.

Conclusion

The result of the 27th Amendment is a situation where children who have spent their entire lives in Ireland can be rendered effectively stateless. The referendum has allowed families to become trapped in limbo for years, resulting in circumstances akin to Eric’s. However, despite the serious consequences of the 2004 referendum, some solace can be taken from the reaction of Irish society to Eric’s circumstance A petition to help Eric garnered more than 50,000 signatures; following this, there was governmental intervention to allow him to remain in Ireland. However, Eric’s situation is not unique; others like it will continue to occur unless meaningful legislation is introduced to address it

The 27th Amendment is not a complete aberration; it is one facet of a country that permits the inhumane conditions of Direct Provision to continue, that has declined to legislate adequately for migrant protection, and that has only recently exhibited a burgeoning racist margin with the riots of 24th November Ireland has, for a long time, prided itself on the absence of an organised far-right, but the lack of electoral representation does not entail the absence of far-right sentiments: the present environment is an uneasy one for the Irish immigrant community.

The Irish citizenship referendum was Ireland’s first test of tolerance towards immigration Let us hope that our next legal milestone surrounding citizenship is not one of further restriction; it should be one of fairness, consideration, and empathy towards the people who wish to exercise their right to movement.

Nearly 10 Years Later, Examining Article 42A and its Impact on Irish Law

By Elena Hernandez, SS Law and Political Science

The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

Introduction

Nearly a decade has passed since the insertion of Article 42A into the Irish Constitution. The incorporation of Article 42A into the Irish Constitution through the 2012 Referendum marked a significant milestone in the progression of children's

rights. The constitutional amendment arose from a myriad of legal, social, and political factors that advocated for enhanced protection of children under Irish law. The fundamental importance of the familial unit still plays a dominant role in constitutional jurisprudence, but under Art 42A, children derive external protection under their “natural and imprescriptible rights” that belong to all children. The exploration of Article 42A’s impact starts with an analysis of the political landscape surrounding its implementation, a delve into its historical roots, and an evaluation of the key provisions. Penultimately, an examination of the positive impact and remaining challenges of Article 42A will be pursued.

Historical Context

Prior to the passage of Article 42A, children were insufficiently protected by the Constitution. The only source of child protection was pursuant to Articles 41 and 42.5 of the Constitution, which enabled protection for the child as part of the familial unit. Articles 41 and 42 5 expressly protected the parents and familial unit before mentioning that the court must have “due regard” for the rights of the child The imposition on the courts to have “due regard” for the rights of the child had minimal impact when weighed against the constitutionally enshrined familial and parental right to autonomy. This resulted in judicial decisions of the Irish courts in which the child’s well-being was largely inconsequential, as demonstrable in Re JH (an infant) where a child was returned to her birth parents, whom she only lived a week with.

Family law in Ireland is indicative of the value placed by the Constitution on familial protection. At the time of passage, Art 42 5, granted the State the ability to intervene for child protection only in exceptional cases, based on physical or moral reasons as the article states. The significant status of familial and parental autonomy created a nearly insurmountable obstacle for the rights of the child evidenced by the stringent nature of the extreme phrase “in exceptional cases” as a limitation for State intervention. N v. HSE illustrates the disproportionate weight given to the rights of the child within the context of the family. As elucidated by Mr Justice McMenamin in the High Court, “the scales (are) significantly weighted having regard to the existence of a constitutional presumption” that child welfare is best served in the family. This conveys a disproportionate protection given to the family rights in relation to the rights of the child and their welfare

The need for constitutional reform was further demonstrated by other contemporary cases in which the courts found themselves bound by the Constitution. This is evident in the cases of M. v. An Bord Uchtála and N v Health Services Executive where the court was obliged, in both cases involving adoption, to return the infants to their natural parents

In M. V An Bord Uchtála, the return of the child to their natural parents occurred 6 years after the adoption took place, with the child having only spent 6 weeks with their natural parents. In N v Health Services Executive a 2-year-old child was returned to their natural parents despite only spending 4 days with them The court in M v An Bord Uchtala indicated that the child's return to their natural parents was decided upon “simply because the second unit constituted a family for the purposes of the constitution”. These decisions were motivated by constitutional obligations rather than the sentiments of

the judges, who found themselves shackled by Art 42 5

The lack of protection for children is further expounded upon in Re JH (an infant) where the child in question was adopted at 1 week old and returned to those natural parents despite acclimating to her adoptive family with whom she lived over two years The finding of the court was made despite concerns that the return of the child to their natural parents would risk incurring long-term psychological damage. The psychological damage to a child was disregarded as less significant than the envisioned welfare gained from the child’s placement in the family. The cumulative impact of these cases, coupled with evolving societal views on children was a catalyst for a shift in Irish Constitutional law. This came about via the 31st Amendment which introduced Art 42A.

Key Provisions

The addition of Art 42A addresses the protection of children, the State’s interventionist role, and the familial institution One of the key provisions furthers the constitutional rights of the child and imposes a duty on the State to “protect and vindicate” them. Further, the new article removes the possibility for differentiation in treatment between children dependent on the marital status of their parents. The need for this is debated based on the decisions in Re M (an infant) and State (Nicolaou) v An Bord Uchtála where the court stated that the rights of the “illegitimate child” are the same as a “child born in wedlock.” Other relevant provisions alter the threshold required for state intervention from a parental failure of a “physical and moral nature” to failure that can affect the safety or welfare of the child in a prejudicial manner State intervention must occur via proportionate means, replacing the term “appropriate” means. The impact, if any, of the changes outlined above is subject to much debate.

Legal Impact

An exploration of the impact of Article 42A must occur whilst maintaining consideration of the different outlooks concerning both the Article’s detrimental and positive impact on Irish law. There is disagreement concerning the overall impact of Article 42A, concerning its effect on child protection and the threshold for state intervention. This legislation marks the first time children’s rights were brought together in the constitution for married and unmarried families alike - a victory from a child protection perspective The significance of this cannot be overstated based on the history of markedly different treatment of families based on their marital status. The difference is demonstrable in G. v An Bord Uchtála and State (Nicolaou) v An Bord Uchtala. In G. v An Bord

Uchtála, an unmarried woman was unable to prevent the adoption of her child as her maternal right was not absolute, while in State (Nicolaou) v An Bord Uchtala the natural rights of the mother and father were denied unless part of a marital family which gives rise to Art 41 rights. Re v JH held severe psychological trauma was an insufficient reason to go against the marital family Prior to Article 42A, “there (was) a constitutional presumption that the needs of a child are to be met and its welfare secured within its family” which imposed an unduly high onus that had to be discharged for State intervention. Article 42A works to secure the rights of the child outside of this presumption and its passage alludes to the promise of change

From the perspective of child protection, the Article significantly altered the constitutional position of children. Art 42A enables the constitution to expressly recognise their best interests and requires the court to consider the views of the child when the cases relate to their life Re JJ most clearly demonstrates this shift in practice The court held that regardless of the parent’s wishes and best intent, the unfair and unjustifiable pain and suffering that the child would endure through the parents’ plan allowed the court to hold the boy as a ward of the state. Through that action, the medical team acted contrary to the parent’s wishes, which was only possible through Art 42A. However, Article 42A is not radical in its application, and the changes between 42A and 42 5 may appear weak.

Nonetheless, the impacts of the Article are subtle and reliant on judiciary interpretation. The Amendment is debated for its efficacy because, in reality, it has freed the courts from Article 42 5 instead of implementing change through its enactment It allows for an

increase in judicial discretion for intervention in pursuing the protection of children regardless of their parent’s marital status, autonomy, and familial structure.

The court has the power to proceed in a proportionate balancing act between the rights of the child and parental and family autonomy Before the amendment, the court disproportionately weighed familial autonomy against child protection. Through this legal development, the state can balance the scales and intervene proportionally in exceptional circumstances. Further legal implications remain unseen in the development of current case law

Conclusion

Nearly a decade has passed since the introduction of Article 42A in the Irish Constitution. This Article was heavily supported by child rights activists and strongly opposed by those who claimed the “amendment will allow the State to remove children from loving and caring homes ” Both advocates and opponents of the Amendment may be dissatisfied with the current state of affairs. At face value, Art 42.5 and 42.A might seem deficient in significant differences. The primary distinction is between technical phrases and substitutions from “appropriate” to “proportionate” and the introduction of intervention on the safety or welfare of children as opposed to the moral or physical danger earlier referenced. The importance of safeguarding children can override parental autonomy and push Irish law towards a more child-protectionist approach, as seen in Re JJ, through the use of judicial discretion deriving from Art 42A. The practical effects of Art 42A will continue to be debated, but in light of Re JJ, the future seems bright despite reliance on judicial interpretation and action.

Ireland in International Law: A Century of Quiet Diplomacy

By Ciara Hogan, SS Law and Political Science

September 2023 marked the passage of 100 years since the Irish Free State joined the League of Nations This victory for Irish statehood ushered in a century of quietly impactful international diplomacy. This piece will provide a brief overview of the mark of a small nation on a century of international legal developments. In doing so, it will seek to illuminate the defining features of Irish foreign policy. Beginning with an account of the Irish road to acceptance into the League of Nations, the article will go on to explore the impact of Ireland within the United Nations framework

Ireland Among the Community of Sovereign Nations

On 10 September 1923, the Irish Free State was unanimously accepted into the League of Nations. This early international institution was the predecessor to the United Nations (UN) and gave expression to the internationalist vision of the 28th US President, Woodrow Wilson. Article 10 of the League of Nations Covenant created a collective security system, under which all member states were bound to come to the defence of any signatory facing an act of aggression

The significance of the Irish accession to the League reflected its desire to gain recognition as a sovereign nation. Membership of the League of Nations would put Ireland among the ranks of an exclusive community of states. This association would contribute towards other nations recognising its statehood, and establishing diplomatic ties with the fledgling Irish state For this very reason, gaining membership of such an organisation was no easy task. While ties with Britain lingered on, President Wilson initially had worries about Irish membership, fearing a row with his wartime ally, Great Britain. However, the promulgation of the Irish Free State Constitution, coupled with the end of the Civil War, led Britain to approve the membership of Ireland

When President of the Free State Executive Council, WT Cosgrave, gave the Irish acceptance speech at the Geneva headquarters of the League in September 1923, he used this opportunity to signal Ireland’s intention to utilise its sovereign prerogatives to secure universal benefits for humankind Ireland’s colonial history arguably equipped it with the credibility to give life to its universalistic diplomatic goals. While

most other victims of European imperialism would never gain membership of the League, and would not be able to join the United Nations until their independence was legally mandated in the 1960s, Ireland gained a seat at the table with the great power nations.

This position of empowerment was further underscored by the highly controversial League of Nations “Mandate System ” This framework placed the former colonies of Germany and the Ottoman Empire under the trusteeship or administration of the Allied war victors. In doing so, it fortified existing systems of European imperial dominance in Africa, the Middle East, and Asia. While Ireland was not the only British colony permitted to join the League of Nations (India and Egypt were also permitted to join), it was nevertheless in a uniquely privileged position. Its status as an ethnically white Western nation could only have bolstered its credibility among a group of nations whose perception of the non-Western world was often captured by offensive terms, such as “uncivilised” and “backwards.”

UN Membership and Beyond - Neutrality, Peacekeeping, and Diplomatic Leadership

Despite the fact that Ireland was a member of the League of Nations at the outset of World War II, this by no means guaranteed its entry to its successor, the United Nations. The 1946 application of Ireland for UN membership was vetoed by only one member of the nascent UN Security Council: the Soviet Union. This action was justified with reference to a lack of diplomatic ties with Ireland, as well as the Irish policy of neutrality during the war. However, in 1955, a Canadian delegate tabled a resolution of the 10th General Assembly for the admission of a new group of nations. As a result, Ireland was unanimously accepted into the United Nations on 14 December 1955

While the neutrality of Ireland has sometimes brought it into the international spotlight, it has also underpinned a deep commitment to peacekeeping and humanitarianism within the UN framework. In the Certain Expenses of the United Nations Advisory Opinion, the International Court of Justice (ICJ) identified peacekeeping, which is not explicitly mentioned in the UN Charter, as a purpose of the

organisation Ireland has headed 12 UN peacekeeping missions since 1958, which is a relatively high amount for a small nation. Furthermore, the Department of Foreign Affairs (DFA) describes Irish peacekeepers as being “highly respected internationally,” most likely because of this longstanding tradition of humanitarianism

Ireland has demonstrated its initiative and leadership on the international stage, as well as its ability to unite a deeply divided Security Council with its “soft power” and military neutrality.

Relatedly, Ireland has used its UN platform to highlight factors contributing to conflict prevention, including nuclear disarmament, respect for international human rights law, and food security. In this regard, Ireland has demonstrated its initiative and leadership on the international stage, as well as its ability to unite a deeply divided Security Council with its “soft power” and military neutrality For example, during the most recent of its 4 terms on the Council (2021-2022), Ireland jointly adopted a resolution alongside the US, which would allow humanitarian workers to remain in areas that are the subject of UN sanctions.

Nevertheless, Ireland has not shied away from

criticising the damaging and exclusionary power structures of the UN architecture Irish political figures have been outspoken about the contradiction inherent in the Russian Federation remaining a Permanent Security Council member, in light of its aggression against Ukraine. Tánaiste Micheál Martin has also instructed the Department of Defence to take steps towards replacing the so-called “triple-lock” Irish neutrality policy, which currently empowers Russia, as a Permanent Security Council member, to veto the deployment of almost all Irish peacekeeping missions abroad. These examples emphasise the difficulties faced by small nations like Ireland in making an impact within the UN architecture, which grants privilege to a small number of powerful nations In some ways, this reality makes the contributions of Ireland within the UN framework all the more noteworthy.

Conclusion

In the 100 years since Ireland joined the League of Nations, it has made important contributions to international diplomacy Its history of colonial subjugation makes Ireland a trustworthy ally to many smaller nations, a perception that is bolstered by the Irish policy of military neutrality. The universalistic goals articulated by WT Cosgrave at Geneva in September 1923 have been consistently pursued by successive Irish delegations at the UN, making clear that the genuine commitment of Ireland to the peacemaking purposes of the UN Charter has passed the test of time. It is no easy task for a small nation to make an impact in the UN system, an environment defined by power politics and prejudicial decisionmaking structures. Despite this, Ireland has managed to make its mark

From Norris to Now: Tracing the Development of Rights for LGBTQ+ People in Ireland

By Alex Coghlan, SS Law and Political Science

The advancement of rights for the LGBTQ+ community has been a pivotal dimension in Ireland's legal evolution Now, 30 years after the decriminalisation of homosexual activity, it is worthwhile to trace the development of LGBTQ+ rights across Irish history, in order to understand the vital steps which have led to the current circumstances and the shortcomings which remain.

The first instance of homosexuality being criminalised can be found in the 1634 “Act for the Punishment of the Vice of Buggery”, whereby homosexual activities were made punishable by death. The legislation was consolidated in the Offences Against the Persons Act 1861, which replaced the death penalty with a punishment of penal servitude before the law was further reinforced by the Criminal Law Amendment Act 1885 It was under this provision that Oscar Wilde, one of the most lauded Irish writers in history, was convicted of gross indecency.

It is notable that these historical examples of laws criminalising sodomy are solely interested in relations between men, thus rendering sapphic sexual activity relatively untouched by the law The Criminal Law Bill 1921 proposed to extend the criminal offence of gross indecency to females. The Bill ultimately did not achieve force in law as a result of fears that the criminalisation of such behaviour would draw unwanted attention to homosexual activity between women.

The law remained relatively unchanged throughout the 20th century until David Norris’ challenge to Ireland’s criminalisation of homosexuality in 1980. He sought to challenge sections of the aforementioned 1885 and 1861 Acts on the basis that they were inconsistent with the Irish Constitution and were therefore not in force since its enactment His claim centred on the impact that the law had on his life, including anxiety over the possibility of prosecution, and he argued that he had a right to personal privacy. Norris, who went on to be Ireland’s longest-serving Senator, lost his case in the High Court but appealed to the Supreme Court. The majority in the Supreme Court held that although Mr Norris was a “congenital and irreversible” homosexual, the potential damage to wider society outweighed his claim to privacy. In the decision, Chief Justice O’Higgins referred to the

“Christian nature of the state” and expressed concerns for the institution of marriage if the case was to be found in favour of Norris The dissenting judgments highlighted the paradox in comparison to the judgement in McGee In this 1973 decision contraception was legalised on the basis of a right to marital privacy, notwithstanding similar concerns about the Christian environment of the State. These contrasting judgements indicate that in an expansive era for the Supreme Court, some rights, such as those claimed by Norris, were considered to be a step too far

Norris took his case to the European Court of Human Rights, which ultimately found in his favour. The impugned 1861 Act was held to be contrary to Norris’ right to private life, as per Article 8 of the European Convention on Human Rights The law was finally abolished in 1993 by the Criminal Law (Sexual Offences) Act. This brought an end to the criminalisation of consensual homosexual activity for which it is thought that there were over 1,000 arrests and/or convictions since 1900 in Ireland.

Alongside these legal developments, the latter quarter of the 20th century brought about a significant societal shift in attitudes towards homosexuality. The first protest for LGBTQ+ rights took place in the early 1970s when Norris and members of the Campaign for Homosexual Law Reform marched in the streets of Dublin with placards. The movement remained embryonic until 1983 when a gay man called Declan Flynn was murdered in a homophobic attack in Fairview Park, Dublin Those responsible for the murder were handed suspended sentences, sparking outrage among the LGBTQ+ community and its allies. A protest took place in March of that year. This was followed by the inaugural Dublin Pride Parade, which took place in June

After the turn of the millennium, the focus began to shift towards campaigns for the right to civil partnership and marriage. Conversations around marriage equality were sparked by Zappone & Gilligan v Revenue Commissioners. This case involved a lesbian couple who had married in Canada in 2003 and sought to have their marriage recognised under Irish law The Supreme Court in 2006 denied their claim on the basis that the Constitution intended

for marriage to be between a man and a woman.

This decision was instrumental in the passage of the Civil Partnership Act in 2010. However, there remained a disparity between the rights afforded to those in civil partnerships in comparison to married couples As civil partnership was only available to same-sex couples, the strong protection for the marital family meant that these couples were effectively relegated to secondary status under Irish law. While some activist groups were satisfied that civil partnership was a necessary step on the journey towards achieving full marriage equality, others criticised that it did not go far enough

In the early 2010s, campaigners decided that a referendum was the optimum way to bring about marriage equality. The new coalition government set up a Constitutional Convention in 2011, which went on to vote overwhelmingly in favour of recommending that marriage equality be put to a public vote The following years were spent strategising for the campaign in anticipation of the 2015 referendum. The ‘Yes’ campaign, in favour of equal marriage, focused on assimilationist framing strategies, highlighting that LGBTQ+ people were no different from heterosexual couples and deserved to have their commitment recognised as such, with an emphasis on the values of love and equality. It quickly became clear that their efforts had paid off when polls indicated that the ‘Yes’ vote had received 62 per cent of the vote. The victory was celebrated with jubilant scenes in Dublin Castle.

The Marriage Act 2015 legislated for same-sex marriage and brought an end to new civil partnerships Additionally, the Children and Family Relationships Act 2015 brought about monumental change for LGBTQ+ families through the regulation of donor-assisted human reproduction (DAHR). However, notwithstanding that it is now easier for same-sex couples to acquire guardianship of their children, there are still many lacunas in the law in relation to the wide variety of ways in which LGBTQ+ couples can form their families

A comprehensive regulation of surrogacy is needed to protect not just same-sex couples, but all those who avail of this method of reproduction.

A comprehensive regulation of surrogacy is needed to protect not just same-sex couples, but all those who avail of this method of reproduction. Currently, male couples who avail of surrogacy cannot both be registered as the father of the child. Furthermore,

couples who have conceived using DAHR abroad or through reciprocal IVF (whereby one woman provides the gamete and the other is the gestational carrier) can have difficulties in having their parenthood recognised. This places both the children and parents in jeopardy as the failure to recognise their legal relationship can lead to many issues in day-to-day life, such as in healthcare settings where the consent of a legal guardian is required It is hoped that the proposed Children and Family Relationships Bill 2023 which is currently before Dáil Éireann, will rectify some of these issues, marking a welcome step in the legislative developments.

While Ireland has been at the forefront of progressive developments for LGBTQ+ people, it cannot be understated that the State continues to fail in its obligations towards its transgender community. Despite becoming only the fourth country in the world to recognise self-determination through the Gender Recognition Act 2015, Ireland has fallen behind in recent years Transgender Europe, an EU-funded organisation for the advancement of transgender rights, has found that Ireland is the worst EU Member State for transgender healthcare. Additionally, there have been many criticisms of the extremely long wait times, which currently range between 2.5 and 10 years. There are insufficient services available to transgender youth, and many adults have been forced to travel abroad to avail of gender-affirming healthcare Furthermore, regulations lack provisions for intersex people and the language employed enshrines the view that gender is binary which leaves non-binary and gender-non-conforming individuals vulnerable.

Elements of the rhetoric used to condemn homosexuality in the 20th century have been rampant in the opposition to transgender rights which has emerged in recent years. Historically the transgender rights movement has existed on the fringes, under the assumption that assimilationist tactics were most effective With issues such as marriage equality taking centre stage in the movement, many transgender activists have had to operate under the belief that gay rights activists would “come back” for them.

While Ireland has seen significant progress in LGBTQ+ rights across the last century, more must be done to protect the members of the community who have become increasingly marginalised Society has developed instrumentally in the four decades since David Norris first took his case, with Dublin Pride now being a significant occasion attended by tens of thousands of people. Legal changes must continue in line with this shift in order to protect vulnerable LGBTQ+ people in Irish society and their families.

Queerness Revisited: Transgender Rights to Legal and Medical Transition in Ireland

By Amy Cox, SS Law and Political Science

Throughout the past century, Ireland has been a hostile place for members of the LGBTQ+ community Pre-independence, under the rule of Parliament in Westminster, male homosexuality was criminalised in Ireland from 1861 It remained so for over a century, until its decriminalisation in 1993 following the ruling of the European Court of Human Rights (ECtHR) in Norris v Ireland. After this point, an equal age of consent was set for both homosexual and heterosexual people The Irish Times recently reported that applying the same age of consent for homosexual sex was a point of contention for Attorney General Harry Whelehan SC in 1993, who advised that doing so implied “an acceptance by the State of homosexuality as a perfectly normal human activity.” He advised that a higher age of consent would be “optimum ” It is therefore surprising that just over 20 years later, in 2015, the Irish public voted to legalise same-sex marriage in a groundbreaking referendum. While same-sex couples now enjoy the same formal rights to marriage and civil partnership, and discrimination based on sexual orientation is expressly prohibited under the Equal Status Act 2000 and the Employment Equality Act 1998, LGBTQ+ people still face overt discrimination. This is particularly true for transgender people, who have been and continue to be denied pathways to legal and medical transition.

Legal recognition of gender was only made available to transgender people in 2015 on the back of hardwon efforts by Dr Lydia Foy, a transgender woman who applied to have her birth certificate renewed to reflect her gender in 1993 After she was refused, Dr Foy initiated a series of legal challenges against the Attorney General’s Office, and while unsuccessful in each of them, McKechnie J, who heard her case twice in the High Court, called on those two occasions for the Oireachtas to urgently review legislation in the area of gender recognition Despite these calls, it was not until 2015 that the Gender Recognition Act was passed, which allows for state recognition of a transgender person’s preferred gender. Ireland was the final Member State in the European Union to adopt a legislative framework for legal recognition of gender identity While the Act has been celebrated by the trans community as a significant step towards equality, it has also been criticised as being too restrictive for trans youth under the age of 18. The

Act permits 16 and 17-year-olds to change their legal gender, but only with parental permission and following psychiatric evaluation, both of which can be difficult or impossible to obtain where parents do not approve of their child’s transitioning and where wait times for psychiatric care are lengthy. Under 16s are prohibited from applying for gender recognition entirely, which as one trans young person remarked at the National Trans Youth Forum 2015, “creates the impression that, as far as the Irish state is concerned, trans children do not exist ”

A pressing area of concern for the transgender community is access to trans-specific healthcare. In addition to legally transitioning by changing their name and gender on official documents, and socially transitioning by “coming out” to friends and family and adapting their clothing and personal style, trans people may also seek to medically transition to align their physical appearance with their preferred gender and to alleviate gender dysphoria. This can involve gender-affirming hormone therapy, which promotes the development of preferred secondary sex characteristics, or gender reassignment surgery of the chest, neck, face, or genitalia

Despite these treatments being life-saving for trans people, who are at a greater risk of suicide due to the impact of gender dysphoria and the effects of social exclusion and bullying, Ireland is currently the worst country in the EU for the provision of genderaffirming medical care The capacity-related issues experienced by the National Gender Service are compounded by a lack of legal certainty as to whether transgender children and adults can consent to hormone therapy, puberty blockers, and gender reassignment surgery without invasive psychiatric examinations. On average, transgender adults (aged 17 and over) wait over three years for psychiatric assessment at a specialist service before being prescribed hormone therapy, calling into question whether self-determination and autonomy play any meaningful role in transgender healthcare in Ireland.

The failure of the Irish state to provide sufficient healthcare to transgender individuals has important consequences for the fertility of transgender people Hormone therapy and gender reassignment surgery have debilitating and potentially irreversible effects

on sperm and egg count, and yet there are limited options available to transgender people who wish to preserve their fertility. While the long-awaited Assisted Human Reproduction Bill 2022 is expected to pass in 2024 and addresses how Ireland will regulate surrogacy, IVF, posthumous conception and other fertility-related issues, it makes no reference to the fertility of transgender people While from September 2023, infertile heterosexual couples have been able to avail of free IVF treatment provided by the HSE, transgender people seeking fertilitypreserving treatment such as egg or sperm cryopreservation (freezing) or indeed IVF must do so from their own pockets

Despite the centrality of informed consent as a principle in Irish medical law, it is unlikely that transgender patients are even given the opportunity to discuss fertility prior to starting hormonal treatment due to a reported lack of knowledge among GPs. In practice, GPs refer adult patients to the National Gender Service at St Columcille’s Hospital, and patients must wait over 3 years for a medical and psychological assessment before being prescribed hormone therapy. Patients are therefore left in limbo for 3 or more years, during which time they could be receiving fertility-preserving treatment. Ireland therefore fails to meet the guidance provided by the the World Professional Association for Transgender Health, the European Society of Human Reproduction, and Embryology and the Endocrine Society which recommend that patients should be counselled on the effect of those treatments on fertility, and be offered fertility preserving treatment.

The lack of publicly funded fertility-preserving

treatment for transgender individuals violates the right to become a genetic parent In Murray v Ireland, the right to procreate was recognised as an unenumerated right within marriage under Article 40.3 of the Constitution, with McCarthy J going so far as to say that the right is “essential to the human condition and personal dignity ” The right was affirmed in the context of Assisted Human Reproduction (AHR) in Roche v Roche McCarthy J’s comments align with the prevailing societal belief that having children is a good and important thing to do in one’s life. As was stated in the Report of the Commission on Assisted Human Reproduction in 2005, the main benefit of AHR is that it allows people to “achieve a longcherished ambition to have their own children.” Transgender people also have a strong desire to have children, and thus in allowing transgender people to have a strong chance at genetic parenthood, fertility preservation fulfils an important social need and should be clearly provided for in legislation.

While life for LGBTQ+ people in Ireland has undoubtedly improved since 1993, when homosexual sex was decriminalised and Dr Foy was denied a birth certificate that matched her gender identity, there remains substantial legal barriers to achieving full equality. The transgender community in Ireland has been largely forgotten, with the result that Ireland was the last member state in the EU to provide for the legal recognition of gender in 2015 and provides the worst trans-specific medical care in the region. With the imminent passage of the Assisted Human Reproduction Bill 2022, Ireland has an opportunity to review its commitment to transgender rights, including the right to reproduce and to have a genetic child

The Eagle Interviews Mark Garrett: Director-General of the Law Society of Ireland

Interview by Jacob Hudson, SS Law and Political Science

Mark Garrett has served as Director-General of the Law Society of Ireland since January 2022. Hailing from Ballina, Co Mayo, Garrett holds a BA in History and Politics from UCD, a MA in Communications from DIT, as well as a postgraduate diploma in EC Competition Law from the London School of Economics. Having previously worked in public affairs in Ireland, the United States, and Brussels, Garrett served as Chief of Staff to Tánaiste Eamon Gilmore from 2011 and 2014 before becoming Director of Corporate Affairs and Public Policy at Glanbia and then, Managing Director of Teneo, a New York based corporate consultancy and advisory firm. He has vast experience in shaping and influencing public policy, and now as the DirectorGeneral of Ireland’s professional body for solicitors, Mark Garett sat down with The Eagle to discuss the challenges and opportunities that face the legal profession

The Law Society and legal profession has undoubtedly changed beyond imagination in the last 100 years. What do you think are some of the main challenges facing the profession that you have come to realise in your role as DirectorGeneral.

I suppose I’ve had the advantage in the last 12 months of having asked the profession themselves. We have a fairly detailed survey of the profession, the first one in quite a while. The feedback from that has given us a good roadmap of where people see opportunities and challenges

The profession itself has evolved significantly in the last couple of decades. It is no longer a straightforward mix of large and small firms. I suppose, it is more like a mosaic of different types of organisations, different practices, and people from different backgrounds So, it very much has evolved to match the needs of an evolving Irish economy and society. The bottom line is that it is a thriving profession. The demand for legal services has grown massively in the same way that the Irish economy and Irish society, on all levels, has grown and is very different and more complex

Go back a 100 years and there were a thousand solicitors in Ireland. It is the centenary of the first

women becoming solicitors this year. Over the next 75 years, it grew to 4,500 solicitors. There are now over 12,000 solicitors in Ireland That is very much emphasising the significant growth and the demand for services as the more complex the legislation, regulation, and dispute resolutions all become. It is quite clear from the survey but also from what we can see across the profession, that ultimately the solicitors profession is a profession that is thriving in many ways and in many places

But, it is not thriving for everyone and not thriving everywhere. We see that there are new areas of law, new organisations, and different forums setting up. There is no longer that traditional model of larger firms or small firms. For example, there has been a transformation in terms of the type of work but also the challenges The main challenges coming out are in relation to practice in what we call “community-based practices” in more rural areas of Ireland. We can see that last year there were 11 counties in Ireland that had only one or no trainee solicitor. This year it has grown to 13 counties. If you look at my own county of Mayo, last year it had one trainee and there are lots of other counties of a similar nature If you go five, ten, fifteen years down the line, we can see that these areas are going to be challenged for family law services, criminal or legal aid services that people will want in those circumstances. We are concerned about that, there's no doubt about it.

But it is not just a legal issue It is a societal issue as a whole If you think about it, similar problems are in areas like GP practices We saw there was a recent survey on veterinary surgeons around the country too, yielding similar outcomes. Those kinds of practices are under pressure and feeling that. Part of our role as the Law Society is to highlight these issues, support them when we can, but also highlight how this needs to be solved not just by the legal profession itself, because that is not possible, but by society, by government action and supports.

The survey of members had a very high response rate. In the main, people are very optimistic about the future and are seeing a lot of opportunity. Seeing challenges as well, of course But in areas such as new areas of practice, technology as an opportunity, economic and population growth driving the need for

more legal services, people see opportunities Then on the other side, apart from small rural based practices, technology can be a challenge. Cybercrime, challenges around attracting and retaining the right people to the profession, well-being, and the stresses and strains of the profession are all common to other industries, but are still, I think, very significant

We have done a significant report on ‘Bullying, Harassment, and Sexual Harassment in the Workplace’. Again, the legal profession like all parts of society has challenges in these areas and it is incumbent upon us to challenge them, to highlight them, and put policies and programmes in place to make sure that people are aware of what good behaviour is like and to ensure that they have the opportunity and the space to challenge those behaviours when they come across them.

You speak there about the demand for legal services increasing. The Law Society is part of the “Ireland for Law” programme for the promotion of Ireland as a place to do legal services. What makes Ireland so good for legal services? What opportunities can this initiative offer to any prospective graduates of law reading this?

If you think about the really big positives, it shows that Ireland has a long standing, well-regarded justice system within the country, whereby the independence of the judiciary, the independence of the legal system, the independence of the legal profession, and the democratic rule of law is something that is seen as strong.

It is worth reflecting on this, because up until relatively recently that is something we have taken for granted It was one of those things where it was “of course that is the case”. There was a recent study by Freedom House, which is a think-tank in the US. Eleanor Roosevelt was one of the founders of it back in the 1940s. In their 2022 Report, having monitored democracy and the rule of law across the world, they said last year less than 20 per cent of the world’s population were living in a “fully-free democracy” An independent judiciary, a robust legal system, an independent press, and an independent legal system, all of which are pillars of democracy and the rule of law - are easily undermined. We can see this close to home In places like the UK, judges are attacked by the media as “enemies of the people” We see in countries like Poland and Hungary, the judiciary is undermined by governments. These are things that we should not take for granted.

So, back to your original question, a very positive aspect of Irish society right now is that we do have

that robust independent legal system which is important on many levels If you think about it from a foreign direct investment standpoint, the underpinning of hundreds of thousands of jobs in this countryforeign companies understand that if there are issues of a legal nature, they have a legal system they can rely on That is just one of the reasons why investing in Ireland is a good idea

There is no doubt that promoting Ireland as a jurisdiction has gained momentum after Brexit. The combination of being a common law jurisdiction, the English language, and access into EU markets makes Ireland a much better place to argue a case than ever before But clearly we have big commercial law firms who are servicing the needs of large commercial entities who are doing business in Ireland and that is a really positive thing for both Irish society, the Irish economy, and the Irish legal profession.

There are still issues and we use Ireland for Law to highlight these issues in terms of investment in the justice system and in the courts system But I think, to flip that, while we talk about the Commercial Court and our independent courts as ‘world class’ and something that we want to promote internationally, to a certain extent that is in contrast with areas that we see a significant problem. Family law courts - people in really stressful situations where they need access to specialised family courts - that is something at best we would say is second-class The Law Reform Commission was founded in the 1970s and one of the first issues they highlighted was the need for specialised family courts and we still do not have them.

There is now a Family Courts Bill before the Oireachtas We very much think this is a very positive step and we would like to see that enacted. But the resources have to go with that for support services and specialised buildings and facilities. People who are the most vulnerable really need the support. We have a system that we are really proud to promote internationally, and we should be, but at the same time it is not like we should not invest in other areas We should use that as an example as to why we should invest in family law courts and the family law system, which is without doubt, lagging behind those areas.

FLAC has pointed out recently that the cost of living crisis has made access to justice and legal aid more important than ever. Do you agree? How can the Government step up on this issue? How should legal aid be looked at in the future?

There is no doubt that legal aid budgets have been significantly under pressure for some time It is symbolic in the sense that it is one of those areas that is not a priority. We feel it should be much more of a priority. The Law Society has a long history of campaigning along with others such as FLAC, the Irish Council for Civil Liberties, and many other organisations to say that this is at best a second class area of the law If you think about it, it is people at their most vulnerable.

The most dedicated people I have seen in law are in those areas of family law in particular. If you think about civil legal aid or criminal legal aid, what you are finding is that people are not being encouraged in any way to practice in this area, or stay in this area It is their passion that is keeping them there. The vast majority of people who get involved in the law do so because they want to make a difference to their clients, they want to make a difference to society as a whole, it is a real area of passion for so many people, whether it be criminal law, family law, or many different areas

The reality is it has become uneconomical for people to practice in this area and that is a problem. Ultimately, we are talking about a scenario of legal aid deserts, which when combined with the lack of community-based practices around the country, we are at risk of finding ourselves in a situation where people will not be able to access legal services when they need them most, when they are at their most vulnerable. Very few access legal services when things are going perfectly well. It is always of need when people are under pressure, are in crisis, or are vulnerable and that is why you need legal aid most You cannot underestimate the impact of these services

Your long-serving predecessor Ken Murphy had a strong background in law. You come into the role from a career that was not based in law, but in public affairs. How do you feel like this career path has helped you in your role as Director-General?

What attracted me to the role was that my career has always been in shaping and influencing public policy. Whether that be here or in my time working in the US or in Brussels. My emphasis is on really

understanding the important role that law and public policy can play in people's lives I think that is why the role of the legal profession at the centre of the justice system is so valuable. There is an opportunity, not just for the Law Society, but for the profession as a whole, to shape public policy in the public interest. That is what attracted me to the role

I think that the understanding of how public policy is shaped and influenced was not only one of the reasons I was attracted to the role, but also one of the reasons as to why they selected me for the role. There is an ambition from the profession and the Law Society to play a bigger part in demonstrating the expertise of the profession and providing this expertise to policymakers, understanding the long-term justice and law reform issues in the country, really motivating people and giving people an opportunity in the profession, who obviously have to do their day-to-day work and make a living, to flex their purpose-driven career and influence public policy positions that they are passionate about

Do you have any words of advice to any of the aspiring solicitors who are looking to do the FE1 Examinations and experience Blackhall Place firsthand?

The first thing I would say is that they should look forward to it with optimism The law offers not just a profession but a purpose It is a real opportunity to shape people's lives and help people when they are at their most vulnerable - who are really in need of good, independent advice to guide them through what can be a really complex or challenging situation.

They should also look forward with confidence that it is a profession that is growing, that has a real bright future and is looking to attract the brightest and the best to make sure that the law of the future and the practice of law is done to the highest standards and done in a way that is really impactful for clients and society as a whole

Look forward with optimism to a career that provides both a profession and a purpose, that is a real opportunity for everybody and you can’t say that about every walk of life.

The Eagle Interviews Clare Kelly: Founder of The Eagle: Trinity College Law Gazette

Interview by Doireann Minford, SS Law and Political Science

Clare Kelly studied Law and Political Science at Trinity College, Dublin. During her studies there, she founded The Eagle: Trinity College Law Gazette Clare went on to complete a Master’s Degree at Harvard Law School and qualify as a Barrister in Ireland. After working with a US law firm in Brussels, she currently works as competition counsel at Google. I was privileged to interview Clare on both founding The Eagle and her current role at Google.

Why did you decide to start The Eagle?

I always had an interest in topical things that were happening in the legal field but at the time you only had things like the Law Review or formal journals that you could write an article for and of course doing that involves a huge amount of effort and dedication. I did do it but I thought that it meant that a lot of people who might otherwise be interested in writing something short and to the point didn't have any that would enable them to do that. And there are some topics that might fit well in the context of gazette but wouldn't necessarily ever be something that you'd publish in a legal journal

Then there's another aspect to The Eagle So much goes on in the legal faculty and the law school amongst law students that it's hard to keep on top of everything that's happening everywhere so I thought it would be nice to provide a rundown as to what's happened, what's going on, who's doing what.

More shrewdly in some senses, if people want to go on and do stuff after Trinity, let's say you're applying for a masters or a job, you're often asked about any publications you have and being able to say that you've had a publication in a Gazette is still something that is useful to be able to put in your CV, as opposed to saying that you've done nothing as you haven't had the chance to write a 50-page paper on the Constitution!

In your note from the Editor in The Eagle’s first issue, you predicted massive changes in the next decades in the legal sphere. Upon reflection, what do you think these changes have been?

I was very interested in legal tech and all that space, so that is probably what I had in mind then, I think it’s

fair to say that that hasn't taken off in the last 10 years probably as rapidly as some people might have said it would Now, looking at the developments in artificial intelligence and ChatGPT and various things like that, in particular the ways in which they are helping AI become more of a commodity that more people can use, I think you're going to see more and more of that change.

Another thing that's spurred on change in the legal industry is probably COVID-19 and the impact that had on the way that work had to be done In particular, the ability to do things online that traditionally would have only been done in person or in hardcopy has made a difference. I think things will continue to change – and ultimately it is going to lead to some very difficult questions for lawyers in respect of how they practice – but it probably will be a slower development than I thought when I was sitting in Trinity 10 years ago, but maybe I've just become a bit indoctrinated to the legal profession’s less optimistic way of looking at this!

The Eagle generally publishes articles focusing on the intersection between law and political science. You studied law and political science yourself but went down the legal route in terms of your career. Why do you think you went down this path?

You can't do or understand law without understanding politics. I think some of the stuff even when I was in Trinity that I learned through my political science modules was incredibly relevant and in fact more relevant to some of the stuff I was doing on the legal side of things than anything I would have learned through the legal modules alone. Something that has always stuck with me is learning about the separation of powers and the independence of the judiciary. That's something that I actually learned more about through studying political science and understanding how the different branches of government are meant to interact with each other than I would have through just doing constitutional law or studying the Irish legal system for example. I think that's probably a nature of how law is taught in Ireland generally and in England where you focus more on the strict letter of the law and are taught in a way to not consider political factors that might affect judgments You never hear about judges’ backgrounds or what they

did before they became a judge It struck me because then I went to study in America at Harvard and in my first few constitutional law classes it wasn't about understanding what the Constitution said and what the legislation said and what the facts were, but the majority of time was spent talking about the judges and who they were and what their backgrounds were and what their own kind of belief systems where On that basis then you assessed the judgment

I wasn't dead set on going down the legal route. I had always wanted to study law, but then when I was coming out of my leaving cert and had to decide what I was actually going to do it seemed quite daunting to make a categorical decision that I was going to do law and therefore was going to be a lawyer for the rest of my life. Now being out of college for 10 years, I realise that while what you do in college is important because it informs who you are and how you think about things, it by no means restricts you to doing one thing or another I did politics to inform the legal studies and get a broader knowledge rather than use that to find some career down that route

In hindsight, I think I was a bit in the dark as to the various job opportunities there might be if you look more at the politics side of things. At Google now, for example, and other big companies, there are huge policy teams, people who engage with key opinion formers, politicians, and other people and help companies understand how they should traverse the various landscapes in the different countries that they're in. A huge amount of that is political in its nature but it is something that until I worked in a company where I have to interact with people like that on a daily basis, I would not have actually appreciated one, the fact that that job is there, nor how interesting it could be

You currently work as competition counsel at Google. How did you end up in this role?

I ended up here completely accidentally in a way. If you had asked me five years ago if I wanted to work at Google or would be working at Google I would not have said yes as it wasn't necessarily on my radar. I was working in the US law firm at the time, and I really enjoyed that, although with that as well I had kept telling myself I would do it for a year and then go into legal tech I think you need to just play a lot of it by ear I know people often talk about having your grand plans and your 5/10/20 year plans I think that still can be helpful at times, but I think it can put too much pressure on people to feel like they need to do something in order to demonstrate that they've been a success, whereas often success I think comes from places that you do not really expect.

sThrough my law firm, I joined the Competition Legal team at Google on secondment (a secondment is essentially an arrangement whereby you are still an associate at your law firm but for the period of the secondment join the client’s in-house legal team full time). I really enjoyed my time on secondment and ultimately after a lot of reflection I made the difficult decision to take up an offer to join Google full time It was a difficult decision because I was also really enjoying working at my firm and wasn't necessarily looking to leave.

Can you explain what you do in practice?

I practice antitrust/ competition law That has to do with practices that companies can or can't engage in. The ultimate goal is to protect the proper functioning competition between firms in markets. A big pillar of antitrust law especially for big tech firms these days, of which Google is considered one, is abuse of dominance Firms that have a certain degree of market power are subject to special responsibilities and there are certain things that they can't do that any other normal firm would be allowed to do. There are also certain things that they should do that other firms with a less significant market position wouldn’t be required to do.

Also, though it is not strictly competition law, the various new digital regulations targeted at trying to reign in the power of big tech, is something that falls within that general antitrust bucket. That's something that I work on quite a lot. For example, in Europe now you have the Digital Markets Act which imposes on so-called ‘gatekeepers’ a range of strict obligations –dos and don’ts that they have to comply with. The responsibility is on the gatekeepers to comply and demonstrate their compliance This is as opposed to how traditional competition law would have worked where the burden would have been on the regulator or complainant to establish a problem and build a case after the fact of something having gone wrong. This new ex-ante regulation is quite a radical shift in terms of how the law is applied and what the law triies to do

On a day-to-day basis, the job is pretty interesting. I think if you're an in-house lawyer your job is quite different to what it would be like if you were in private practice in a law firm in that as an in-house counsel you're an interface between two separate things – between external lawyers and the business Sometimes, you engage outside counsel in order to help you kick the tires on advice you want to give or to help in engagements with regulators, for example if there is an investigation requiring lots of submissions to be prepared. Probably more

importantly, you're the advisor to the business on all of these things – that means a huge range of things because, at least in my current role, I deal with a lot of different teams. I mentioned policy teams earlier, sometimes policy teams will have questions as to what they might go out and say or maybe you'll want to work with policy teams to ensure that as Google, you are acting in symphony with one another so that the legal side reflects the policy discussions that are happening and vice versa.

Then, of course, you have businesspeople who are trying to come up with commercial strategies so it is helping advise them as to what they can and can't do. You have people building products, and you are helping to advise them as to the factors they ought to consider when they build the products. For example, if they're building a new product and, for various reasons, may be considering restricting access to an

API to other Google services only, you help them to understand when that might be ok and when it might not be. It's also quite strategic. Like I mentioned, all this new digital regulation trying to rein in big tech is having a very real impact on how the business can operate and how this should be taken into account going forward So it involves meeting with the senior people in the business on a relatively frequent basis to help them understand what the new requirements are, and what the competition regulatory landscape is looking like so that they can make informed business decisions .

I guess the final piece of the role is engaging with the regulators to advocate on behalf of the company. I have to travel to Brussels quite a lot because the European Commission is the primary enforcer of competition law in Europe.