UCD SLS Law in the 21st Century

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

____________ UCD Student Legal Service Sutherland School of Law Belfield Dublin 4

i

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

DISCLAIMER UCD Student Legal Service assumes no responsibility of any kind for the information contained herein or for any reliance that the recipient or any other party may place on any information contained herein and hereby disclaims all liability in respect of such information.

The information contained herein is not intended to convey legal advice and should not be construed as or used as a substitute for such advice. It is written for general informational purposes and reading it does not create a lawyer­ client relationship.

While every effort is taken to ensure that the information provided is correct and accurate, it should not be relied upon as a comprehensive or current statement of the law in respect of any matter and appropriate advice should be sought before taking or refraining from taking any action in reliance on any information contained herein.

Neither UCD Student Legal Service nor any of its officers, members or contributors, either individually or collectively, make(s) any warranties, representations or undertakings relating to any of the content of such information (including, without limitation, as to the quality, accuracy, completeness or fitness for any particular purpose of such information) and no liability is accepted for any injury and/or damage to persons or property as a result of any reliance on any such information.

All enquiries should be directed towards: studentlegalservice@ucd.ie UCD Student Legal Service 2015 Sutherland School of Law, Belfield, Dublin 4. Š University College Dublin Student Legal Service 2015

ii

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

FOREWORD It gives me great pleasure to write the Foreword to the latest SLS publication, ‘Law in the 21st Century.’

Addressing five particular areas of law, it is interesting to reflect within each area on the impact of globalisation on the development of law and the impact of that process on the individual.

The first section on Commerce and Tax gives practical advice on setting up a business reflecting on the changes made by the recent Companies Act. The advice offered on companies is supplemented by the section on Taxation, which looks at the global dimensions of taxation. The latter includes the OECD project on Base Erosion and Profit Shifting which may have a significant impact on Ireland and on Corporation Tax. A threat to Ireland may emerge from Northern Ireland as the Assembly there may acquire the power to set a Corporation Tax rate different from the rest of the United Kingdom thus threatening Foreign Direct Investment in Ireland. The attractiveness of Ireland as a destination for investment is also affected by its Employment Laws and this section of the work examines a number of pressing concerns, in particular the national minimum wage and zero hours contracts.

The bulk of the remainder of this publication is dominated by the issue of human rights. For example, in the section on Social and Family Affairs, the contribution of Eve Kennedy on Abortion contrasts various rights at issue. Future legislation is not ruled out and in another contribution, on In Vitro Fertilisation, it is encouraged – both are highly contentious social and political issues. Slightly less contentious are the other issues discussed in this section – the rights of the father and pre­nuptial agreements – but these are illustrative of social changes prompted by the need to recognise the human rights of all members of Irish society.

The latter are to the fore in the section on International Law and Human Rights which offers reflections on the Responsibility to Protect in International Law and the rights of asylum seekers within Ireland, both of which give pause for thought for those societies afflicted by conflict and those who flee such conflicts in the hope of a better life. This prompts an interesting contrast between these topics and the issues addressed in the previous two sections giving rise to questions as to the nature of the society we wish to be. The nature of that society is discussed in the final section on Science & Technology in which discussions range from the newly­emerging right to be forgotten to the issue of cyber­bullying before concluding on stem cell research.

There is much to commend in this publication. It offers critical, well­written insights into recent legislative developments indicating how far the law has developed across a number of areas, while also outlining the need for further reforms. Future editions of this publication will undoubtedly reflect these reforms and continue to advocate the continuing transformation of Irish law to reflect the demands of globalisation and the need to protect the rights of all members of Irish society.

Professor Joseph A. McMahon Dean, UCD Sutherland School of Law

iii

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

INTRODUCTION The Student Legal Service is a society comprised of law students who dedicate their time and resources to making legal information accessible to everyone, while also assisting the wider student body with their legal queries. To complement the work of the SLS, the publication serves as a simple, concise guide to the prominent legal issues which have emerged in recent years.

Society is progressing at a rapid pace and, to accommodate this, the law must evolve in unison with it. To meet new challenges, our Superior Courts engage in a perpetual process of establishing new precedent while our legislative institutions constantly redraft and enact new laws. Keen to emphasise the holistic nature of change, ‘Law in the 21st Century’ will cover the most topical and frequently debated areas of law in five distinct categories. These include International Law and Human Rights, Employment Law, Family and Social Affairs, Commerce and Tax, as well as Science and Technology.

‘Law in the 21st Century’ aims to encourage discourse and engagement with the law among the wider student body while also allowing students to better their understanding of the law that governs their disciplines. Whether you are a commerce student looking to set up a company, a science student interested in stem cell research or even an internet user concerned about privacy, we believe that this publication can offer you guidance. We are also confident that this publication is of use to our fellow law students who are interested in keeping abreast of recent legal developments.

In particular, we would like to thank Dr Liam Thornton, Senior Treasurer of the UCD Student Legal Service; Dr Joanne Blennerhassett, Dr Richard Collins, Dr Kevin Costello, Ms Suzanne Egan, Ms Emer Hunt, Dr Máire Ní Shúilleabháin and Mr Paul Ward for their valuable guidance throughout the production of this publication.

We must extend our utmost thanks to our sub­editors Austin Conlon, Erica Heslin, Grace Bolger, Kate Moloney and Thomas Condon. Without your dedication and hard work, this publication would not have been possible. In addition, our illustrator, Eevee Clarke, and our graphic designer, Grace Miller, are to be commended for their excellent work in ensuring that this publication is not only attractively presented, but also clear and easy to read.

Finally, we must thank the contributors to the publication who were fundamental to its success. All of you showed great enthusiasm and an immense ability to take complex topics and explain them cogently. We hope our readers enjoy the fruits of your labour as much as we have enjoyed reviewing them.

Sorcha Cusack & Aodhán Mc Gourty Co­editors

Barry O'Fiacháin Chairperson

UCD Student Legal Service 2014/15

iv

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

ACKNOWLEDGEMENTS Many thanks to the committee of the Student Legal Service and to the contributors who made this publication possible: Co­editors: Sorcha Cusack and Aodhán Mc Gourty Graphic Design: Grace Miller Illustrator: Eevee Clarke Cover Design: Barry O'Fiacháin Sub­editors: Commerce and Tax ­ Austin Conlon Employment ­ Grace Bolger Social and Family Affairs ­ Kate Moloney International Law and Human Rights ­ Erica Heslin Science and Technology ­ Thomas Condon Contributors: Áine O’Shea Aodhán Mc Gourty Bartosz Lekke­Hensoldt Caoimhe Hickey Clare Mckeon Clémence Coppin Conor Gilheany Conor Keegan Conor McCollum Eithne Caulfield Committee: Aodhán Mc Gourty Barry O'Fiacháin Clare Mckeon Conor Gilheany Conor Keegan Dearbhla O’Sullivan

Eleanor Brookes Erica Heslin Erinne FitzGerald Eve Kennedy Genevieve Brindley Grace Bolger Hannah Cowley Kate Moloney Kyle Moran

Laura McDonnell Laureline Lemoine Óisín O’Callaghan Rob Ranson Roryann Sweeney Sorcha Cusack Susanna Morgan Thomas Condon Victoria Sweetnam

Eimear O'Leary Emma Guerin Erica Heslin Grace Looby Kate Moloney Nessa Flynn

Rebekkah Brennan Ruth Egan Shauna­Claire O'Callaghan Sorcha Cusack

With special thanks to: Professor Joseph McMahon, Dean of UCD School of Law; Dr Liam Thornton, Senior Treasurer of UCD Student Legal Service; Dr Joanne Blennerhassett, Dr Richard Collins, Dr Kevin Costello, Ms Suzanne Egan, Ms Emer Hunt, Dr Máire Ní Shúilleabháin and Mr Paul Ward.

v

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

TABLE OF CONTENTS Commerce and Tax 1. Setting up Your Own Business 2. Investing in the Shares of a Company 3. Practical Tax Guide 4. Controversial Taxes 5. Tax on an International Scale

1 3 4 6 7

Employment 1. National Minimum Wage 2. Rights of Interns 3. Zero足Hour Contracts 4. Protecting Whistle足blowers

9 11 12 13

Social and Family Affairs 1. In Vitro Fertilisation 2. Abortion 3. Fathers' Rights 4. Pre足nuptial Agreements 5. Surrogacy

15 16 18 20 22

International Law and Human Rights 1. Responsibility to Protect: A Hollow Doctrine?

2. The European Convention on Human Rights (EHCR) 3. LGBT Rights 4. Direct Provision: A Reality Without Rights for Asylum Seekers in Ireland 5. Mobility Rights in the European Union 6. Free Movement and the Introduction of Same足Sex Unions in the EU

25 26 27 29 31 33

Science and Technology 1. Is Internet Access now a Human Right?

2. Right to Privacy 3. Right to be Forgotten 4. Data Protection 5. Cyberbullying and the Law: It's Complicated 6. Illegal Downloading 7. A Beginner's Guide to Bitcoin 8. The Development and Future of Space Law 9. Use of DNA Evidence and Databases in Ireland 10. Animal Testing in Scientific Research 11. The Law of Stem Cell Research

vi

35 35 37 39 40 42 43 44 46 47 59

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

SECTION 1: COMMERCE AND TAX SETTING UP YOUR OWN BUSINESS Bartosz Lekke­Hensoldt

TYPES OF COMPANIES

A company limited by shares will only hold members liable for the amount they paid or agreed to pay for a specified number of shares in the company.

Where a company is limited by a guarantee, a transfer of money does not take place until it is demanded. This limits members to the amount that is outlined in the guarantee of the company.

There are three main types of business:

1. Sole­trader Sole traders are easily established: the founder’s only legal obligation is to register themselves as self­ employed with the Revenue Comissioners. However, if one’s business fails, then their personal assets may be used to pay creditors.

SETTING UP A COMPANY The Companies Act 2014 will introduce a simplified procedure for setting up a private limited company.

Under the new Act, the Articles and Memorandum of Association are replaced by a single document: the Constitution. Under Section 19, a Constitution must include:

2. Partnership A partnership is an agreement between two or more people. Partners are jointly responsible for their business and its debts. Some types of professionals, such as solicitors and acountants, may only operate in a partnership.

• • • •

3. Incorporation Corporations may be either public or private. In addition, they are either limited or unlimited by shares or by a guarantee. This status will be set out in company’s Memorandum of Association. Such companies are separate legal entities from both the owners and the directors of the company. However, they must publically disclose certain information on an annual basis and must be registered with the Companies Registration Office (CRO).

•

The Company’s name That it is a private limited company Number of shares The amount of share capital that it proposes to register and the division of the the capital into shares of a fixed amount Any other, supplement regulations that the company intends to take

A private limited company under this act is to contain no more than 149 members. The liability of the members should only be limited to the shares that they agreed to purchase.

Next, the Constitution should be delivered to the Registrar together with other relevant documents, as outlined in Section 21. These documents should include: • Statement and consent, i.e.: o the statement of the names of the directors and the secretary o address of the company’s registered office o place where the central administration of the company will be carried on from.

INCORPORATION STATUS A Public Company may advertise and offer its shares to the public at large. A private company’s members must not exceed 99 and it may not offer its shares to the public at large.

A company’s liability may be unlimited. This will not secure the personal assets of the members of the company. Therefore, companies with unlimited liability normally act as charitable companies or exist to hold property. A limited company, on the other hand, can either be limited by the shares or limited by a guarantee.

1

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

AID, TAX AND FUNDING

• Declaration, i.e.: o A declaration that all matters outlined in the registration have been complied with, o Declare that the purpose for which the company was formed was to trade in the State. o Declare that all the particulars given in this and other forms are correct.

Unemployment The government has created certain schemes to help unemployed people in setting up their own businesses. Schemes such as Back To Work Allowance and Short­Term Enterprise Allowance provide one with access to loans, training, market research, and business plans.

Further, the Start Your Own Business Scheme provides for an income tax relief. The only requirement is that one must be unemployed for 12 or more months. This scheme is forecasted to operate from 23rd October 2013 until 31st December 2016.

• Fee for company’s incorporation.

When these documents have been delivered to the Registrar, the Registrar will issue a certificate of incorporation; essentially, the company’s birth certificate.

Funding Schemes Businesses that employ no more than 10 employees may be aligible for the Microfinance Ireland scheme. It also applies to self­employed and start­ ups, and allows one to borrow between €2,000 and €25,000.

A NEW CREATURE The Companies Act 2014 also created a new type of a private limited company: a Designated Activity Company (DAC). Unlike ordinary PLCs, this company will contain an objects clause. This clause will limit the actions of the company and the transactions that the company can enter. It will outline the area of trade the company will operate in. This clause will benefit investors by specifying where their money will go.

Tax Incorporated companies are liable to pay corporation tax. However, businesses that are not incorporated are considered to be sole traders.

These are taxed under a self­ assesment system provided by the Revenue Comissioners.

New companies may obtain relief on their corporation tax for the first 3 years of trading (up to €5,000 per employee). The amount of relief available depends on the employer’s PRSI, paid by the company.

EU REQUIREMENTS The following information about the company must be made available online to the CRO and be published in the Companies Registration Office Gazette: • Certificate of Incorporation • Name of the company • Notice of any change of name • Annual returns received and registered

Obligations on the Employer The employer, while setting up their own business and employing staff, is obligued to register for PAYE and PRSI with the Revenue Comissioners.

2

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

INVESTING IN THE SHARES OF A COMPANY Susanna Morgan

When one invests money in a company, the company, in turn, invests that money further. If the company performs well, both the investor and the company will make money. This is called a return. If the company does badly, the investor risks losing money. Therefore, investing in the stock market is riskier than simply putting money in a bank. It is important to note that prices may rise or fall quickly; as a result an investor may loose money when they sell their purchased shares.

Pooled investment funds are safer investment strategies. These funds spread an investor’s money across a range of investments, thus lowering the risk of losing money if shareholdings decrease in value.

Government­backed investments such as gilts, cash, property and bonds are typically safer investments.

Gilts and bonds offer more guarantees that an investor will get their money back. They also pay out an interest to investors.

It is important to note that an investor must pay charges when they buy shares. Usually, the charge is a stockbroker’s service fee and the amount will vary depending on the type of service provided.

Furthermore, any profits made will be liable to taxes. Stamp duties, a once­off tax, must be paid on purchase of shares in Ireland. If the investor receives a dividend, a sum of money paid out of the company's

One becomes a shareholder in a company by investing in its stock. This is done by buying shares, which are essentially a portion of a company’s assets and earnings. A number of variables will determine whether the value of the purchased share will increase or decrease; such as the performance of the stock market and the profitability of the company, either current or expected.

To buy or sell a stock, an investor requires a stockbroker who will do business with the stock exchange on the investor’s behalf. The relationship between the investor and the stockbroker may take a number of forms: is can be discretionary, advisory or may be limited to execution only. A discretionary account means that the stockbroker makes investment decisions on the investor’s behalf within certain, agreed guidelines. With an advisory account the stockbroker will advise the investor on what shares to buy and sell. Finally, where an investor is party to an execution only account, the stockbroker will buy or sell shares the investor themselves has chosen without offering any advice.

One can buy and sell shares by going directly to a stockbroker, to a local bank, through an investment broker, or with online share dealing.

Some banks also operate online share dealing services.

3

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

profits to shareholders, this will also be taxable.

An investor can hold shares in a number of ways.

They may do so through a share certificate, via a nominee account or through a crest personal account.

Share certificates are currently being phased out in Ireland and will be replaced by a new form of electronic account. While they do allow shareholders to legally hold their shares, they often cause delays when an investor attempts to buy or sell shares. This delay may lead to a loss of money if share prices fall in the interim.

Investors can also hold shares in a nominee account. However, through this system an investor does not legally own the shares. Instead the investor pays a fee to their stockbroker, who will then control the shares. Nevertheless, the investor remains in control: they can instruct the broker to buy or sell instantly by using a reference number. In addition, the investor will get regular statements detailing what

they hold and what activity has been carried on under the investor's account.

Finally, shares can be held electronically though crest personal accounts. Under this system the investor must pay an account service fee and must deal with their own stockbroker. However, crest personal accounts allow investors to legally own the shares. Investors receive all documents and dividends will be paid. Like a nominee account, an investor can instruct their broker to buy or sell instantly with their reference number.

Consumerhelp.ie recommends crest personal accounts above all other methods of shareholding.

While investing in stocks and shares isn’t as complex as one might think it is important to be mindful of the risks involved. As general rule, one should never invest more money than one can afford to lose.

PRACTICAL TAX GUIDE Clare Mckeon

employer.

Taxpayers must ensure that this Notice is correct. They must inform the Revenue of any changes to personal details that would affect eligibility to tax credits; such as marriage, cohabitation, bereavement.

Most taxes in Ireland are based on self­assessment: individual taxpayers are liable to report, calculate and pay any taxes due within the prescribed time limits.

The following is a simple guide to some of the main areas of tax. As most areas of tax involve rebates, credits and allowances depending on individual circumstances, each individual should seek further information on their tax liabilities on Revenue.ie.

• Tax Rates & the Standard Rate Cut­off Point Due to the changes implemented by the 2015 Budget, the standard rate of tax is 20% which applies to the standard rate tax band of €33,800 (for a single person). Any excess income ­ earned by a single person ­ over €33,800 is taxed at a higher tax rate of 40%.

1. PAY AS YOU EARN (PAYE) The amount of PAYE deducted from an employee’s wages on behalf of the government depends on how much the employee themselves has earned and on their individual circumstances. The PAYE system is made up of (i) Income tax, (ii) PRSI and (iii) USC.

• Tax Credits This reduces the amount of tax payable. Credits are deducted after the tax has been calculated.

Individual circumstances of the taxpayer dictate entitlement to tax credits. Example of credits: One Parent Family, Home Renovation Scheme, and PAYE credit.

(i) Income Tax • Notice of Determination of Tax Credits & Standard Rate Cut­off Point: Every January, the Revenue will send taxpayers such Notice. It will display the rate of tax that applies to the individual’s income, as well as any tax credit. A summary of such Notice will also be sent to their

• Tax Allowances 4

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

If DIRT has been paid then it is not subject to any further Income tax or USC. However, when filing a tax return, the interest must still be declared as non­ PAYE income.

The 2015 Budget introduces a refund of DIRT on savings to support first time buyers. The refund will cover DIRT on savings of up to 20% of the purchase price of the property in theimmediate 48 months prior to purchase.

This also reduces the amount of tax to be paid, but operates differently to tax credits. As the allowance is deducted from the income before it is taxed, the amount of tax reduced depends on what the individual’s highest rate of tax is (income tax: 20% or 40%).

(ii) Pay Related Social Insurance (PRSI) Most employers and employees (between ages 16­ 66) pay PRSI into the national Social Insurance Fund. Employers are responsible for ensuring their own PRSI and that of their employees’ is paid. If an individual fails to pay their PRSI then their state pension may be reduced. If the amount of an employee’s paid PRSI is incorrect then the employer is responsible for the deficit.

The amount of PRSI deducted depends on earnings and the type of work. PRSI is calculated on reckonable pay; (gross pay plus any notional pay).

Certain reliefs may redce this amount: e.g. pension contributions by employers. For Class A PRSI (industrial, commercial and service type employment): earnings less than €352 gross per week are not subjected to PRSI. From 2014 unearned income became liable for PRSI at a rate of 4%. However, income below €3,174 a year is not liable if it has been taxed under the PAYE­system (normally by reducing the person’s tax credits). If DIRT has been paid on non­PAYE income like interest from deposits, then no further tax is required.

3. CAPITAL GAINS TAX (CGT) CGT is charged on the capital gain (profit) that is made on the disposal of an asset. Any form of property (other than Irish currency) including an interest in property (e.g. a lease) is an asset for CGT purposes.

The CGT relief for the first seven years of ownership of properties (commercial or residential) bought between December 7, 2011, and December 31, 2014 will not continue for properties purchased after this date.

Disposing the asset for CGT purposes is not confined to the sale of the asset in exchange for money. It can also include transfer of ownership by way of exchange or a gift. Some transfers are exempt for paying the CGT, such as a transfer between spouses or civil partners, or a transfer of a site from a parent to a child with the objective of using the site to build the child’s principal private residence (so long as the site’s value does not exceed €500,000).

The current rate for CGT is 33% but the first €1,280 of taxable gains made in each year is exempt. There are two CGT payment deadlines depending on when the asset was disposed during the year; December 15, (in the same tax year for disposals between January to November) and January 31, (of the following tax year for disposals in December). Finally, a tax return must be submitted to the Revenue for all disposals by October 31 of the following tax year in which the asset was disposed.

(iii) Universal Social Charge (USC) USC was introduced in 2011. Since 2015, a taxpayer only pays USC if their gross income is over € 12,012 per year. Gross income includes notional pay after any relief for certain capital allowances. However, pension contributions are still liable for USC. However, certain types of income are exempt, such as the State Pension, Maternity Benefit, and income from interest where DIRT has been paid.

2. DEPOSIT INTEREST RETENTION TAX (DIRT)

4. CAPITAL ACQUISITION TAX (CAT)

The interest received from a deposit account at a financial service provider is subject to DIRT. DIRT is charged at a rate of 41% on all interest payments.

Gift Tax and Inheritance Tax are two forms of CAT. The gift/inheritance is taxed if its value is over a certain threshold. Gifts or inheritances between 5

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

spouses and civil partners are exempt from CAT. Also a gift or inheritance of a house which has been the beneficiary’s main residence may be exempt from CAT if the beneficiary does not hold any interest in another house.

CAT applies to all property located in Ireland and even property not located in Ireland if one of the parties is resident or ordinarily resident in Ireland for tax purposes. The gift or inheritance is valued at its market value at the time it was transferred.

The CAT rate is 33% on gifts or inheritances made after December 5, 2012. It only applies to values over the applicable threshold. Also the first €3,000 of the total value of all gifts received from one person in a year is exempt from CAT.

CONTROVERSIAL TAXES Clare Mckeon

1. Local Property Tax (LPT) The LPT was introduced in 2013, replacing the Household Charge. Any arrears not paid on the Household Charge for houses owned in 2012 is to be collected via the LPT system. The LPT is based on the valuation of the property on May 1, 2013. No revaluation is required of property up until October 31, 2016. However, in 2015, the local adjustment factor may alter the amount of LPT one is required to pay. The local adjustment factor allows local authorities to adjust the LPT payable in their constituencies up or down by up to 15%. The LPT can be paid by phased instalments or in one lump sum. Failure to pay the LPT can result in mandatory deductions from wages or occupational pensions.

the first bill is set to be issued in April 2015 for the quarter January­March 2015.

The recently introduced capped charges will apply until December 31, 2018. Any meters installed will still be used to measure water usage but quarterly bills will be capped at the maximum rate for the particular household (one adult or two adults and more; or a single service or both services). Households are eligible for rebates if, after their meter is installed, their usage is below the capped level for a 1­year period, after previously paying the capped fixed rate while they awaited a meter. For metered bills there are free allowances for every child (21,000 litres per child). If a household’s water is of poor quality and there is a Boil Water Notice or Drinking Water Restriction, the household is entitled to a 100% discount until rectified.

Every household (excluding secondary homes) that register to Irish Water will receive an annual Water Conservation Grant (€100 per year), even if the household has a private water supply service. It will be issued by the Department of Social Welfare in September 2015. Failure to register by February 2, 2015 will result in a default maximum rate of €260 per year and non­eligibility for the Water Conservation Grant. Refusal to pay will accrue late

2. Water Tax This tax led to the establishment of Irish Water, a semi­state water utility company. The domestic water supply charge was introduced for homes that are connected to a public water supply or a public wastewater service. The person liable to pay the charge is the occupier of the house; in rental properties the tenant is considered the occupier for water tax purposes. If there is no occupier in the house or if it is a secondary household then a reduced rate applies. The bills will be issued 4 times a year; 6

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

payment penalties on the household’s account and may result in Irish Water taking legal action against the occupier. Planned legislation will introduce a

statutory charge on properties if bills remain unpaid, and will compell landlords to deduct water charge arrears from tenants’ deposits.

TAX ON AN INTERNATIONAL SCALE Kyle Moran

by their Irish subsidiaries. Taxable profits are then shifted onwards to tax havens in the Caribbean.

Minister for Finance Michael Noonan has announced that this loophole will be abolished. This decision followed international pressure regarding Ireland’s dealings with Apple: the European Commission has investigated provision of illegal state aid by the Irish government to Apple. The OECD, an influential tax think tank, described scrapping the “Double Irish” as a ‘smart and courageous’ move. From January any new company domiciled in Ireland will also have to be resident here – thus eliminating the “Double Irish”.

However, the loophole will not be eradicated immediately: companies already registered here will have until the start of 2021 to modify their accounting structures. Moodys, a credit rating agency, does not believe the loss of the “Double Irish” will affect foreign direct investment (FDI) because of the other benefits Ireland offers.

Accompanying the loss of the “Double Irish” is the introduction of a “knowledge development box” (KDB) to attract foreign investment by offering tax reductions for Irish intellectual property profits.

Ireland’s ‘knowledge box’ rate is likely to be 5% (matching the Netherlands which has Europe’s lowest rate) and will likely be based on existing patent boxes in Britain and the Netherlands.

According to Irish MEP Brian Hayes, Britain’s patent box results in an annual tax break of £1 billion.

The idea is to incentivise businesses to create and subsequently manufacture products in the country. The EU has not yet decided whether this is illegal state aid. Germany is particularly adverse to the concept. Ireland already motivates companies to create new products with its 25% research and development tax credit. The knowledge box will further add to this attraction.

National tax schemes are becoming scrutinised with unprecedented rigour and have recently attracted much controversy. Ireland has escaped neither scrutiny nor controversy: the “Double Irish” tax scheme continues to make international headlines, while Irish companies such as Glanbia and Sisk were among those implicated in the “Lux Leaks” scandal.

Corporation Tax Rate Ireland has a corporation tax rate of 12.5%, one of the world’s lowest. This rate helps attract foreign direct investment. While often criticised by other countries, it is perfectly legal. There is no question over whether Ireland is a tax haven as it has no banking secrecy laws. Moreover, other EU countries like the Netherlands and Luxembourg have advantageous tax systems so Ireland is not alone in this respect.

Without such a low rate Ireland would have struggled to entice multinational behemoths like Amazon, Facebook, and Google. Having such big names sparks the interest of other companies, to the point where Ireland has even been described as Europe’s Silicon Valley. When these firms set up in Ireland they create jobs and provide taxes the country would not otherwise receive.

These companies choose Ireland because there is certainty that the corporation tax will not change.

Thus the Minister for Finance constantly reaffirms Ireland’s commitment to this rate. So, controversial as the low tax rate is, it serves a vital purpose for the country.

Double Irish and Knowledge Box The “Double Irish” strategy allows companies to lower their tax liability by shifting their profits from high tax countries to low tax countries. Thus companies located in Ireland may pay tax below the (already low) 12.5% rate. A number of multinational companies structure themselves to have sales booked 7

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

Lux Leaks In November and December 2014, the International Consortium of Investigative Journalists published a list of secret tax deals between Luxemburg and several corporations.

Former PricewaterhouseCoopers employee Antoine Deltour leaked a copy of the tax rulings, which he had taken from PwC. The second Lux Leaks (in December) contains information from the big four accountancy firms. Deltour revealed that PwC was not the only professional services firm, nor Luxembourg the only country, involved in the scandal. 343 companies from dozens of countries negotiated secret tax agreements with Luxembourg.

The Irish Times outlines how companies have reduced their taxes with these Luxembourg arrangements: a company is set up in Luxembourg.

The company is then lent €1 billion. An Irish company is established, which borrows €1 billion from the Luxembourg company which, in turn, pays interest on the loan. This results in tax savings in Ireland because the interest payment can be charged against Irish profits. No tax is paid in Luxembourg because the first company does not pay tax on interest received from the second company.

While these arrangements are legal, the taxes paid under them are negligible. Those who view these legal arrangements as unethical have called for modification of the current tax system to outlaw them.

Changes The OECD is looking at new rules to prevent unethical tax arrangements by focusing on “the actual dealings taking place”; not just the “legal arrangements” for subsidiaries. The aim is to prevent firms “artificially” shifting profits between jurisdictions. The Base Erosion and Profit Shifting (Beps) project is also working on “anti­ fragmentation” rules to stop companies organising their affairs into separate legal activities. This would prevent them from having a permanent establishment in a particular country.

8

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

SECTION 2: EMPLOYMENT

NATIONAL MINIMUM WAGE Clare Mckeon

The national minimum wage has become a topic of interest recently for workers due to the Tánaiste, Joan Burton, announcing that she expects the national minimum wage to increase in 2015. Furthermore, the Coalition has planned to set up a nine­member Low Pay Commission to investigate further on whether the minimum rate should increase, with a report expected to be furnished back to the Coalition by July this year. There have been surveys conducted citing that there is a 32% difference between Ireland’s legal minimum wage and the so­called ‘living wage,’ i.e. a wage which is high enough to maintain a normal standard of living. Additionally, stories in the media reporting that the National Employment Rights Authority (NERA) recovered unpaid wages for workers, one of which was paid a mere €2.46 per hour from an international company, sheds light on the fact that it is a criminal offence for an employer not to pay their employees the legislative minimum wage.

Minimum Rates: •18 years­old and over: •Under 18 years­old:

€8.65 per hour €6.06 per hour (70% of €8.65)

Sub­minimum Rates: For employees entering employment for the first time since attaining the age of 18 or for employees who entered employment before turning 18 and continued in employment after becoming 18.

• First year of employment:

€6.92 per hour (80% of €8.65)

• Second year of employment:

€7.79 per hour (90% of €8.65)

Training Rates: These are sub­minimum rates which apply to employees over the age of 18 who undergo a course of structured training or directed study authorised by the employer. The training has to prescribe to certain standards which are outlined by the National Minimum Wage Act, 2000. For example, the training must enable the employee to acquire certain skills and/or knowledge that will enhance the

The National Minimum Wage Act 2000 provides a structured mechanism for setting the national minimum wage rate.

9

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

employee’s work performance.

• First one­third of course: €6.49 per hour (75% of €8.65) • Second one­third of course:

€6.92 per hour (80% of €8.65)

• Final one­third of course:

€7.79 per hour (90% of €8.65)

Lodging only:

Gross remuneration does not include non­ reckonable components; this incorporates overtime premium, tips/gratuities, unsocial hours’ premium, or any payment referable to an employee’s redundancy.

Total working hours is the amount of hours which are greater between the following two options: a) The hours (including part of an hour) set out in a document such as a contract of employment, collective agreement or statement of terms. b) The total hours actually worked or required to be available for work and paid.

Each one­third period must be of a duration that is not less than one month and no greater than twelve.

Exceptions: The Act does not apply to close relatives of the employer such as spouses, children or siblings.

Additionally, an employer can apply to the Labour Court to seek an exemption from their obligation to pay an employee the national minimum rate of €8.65 due to financial incapacity. However, certain conditions must be met; for example, in a situation where the employer would have to make workers redundant if he/she was compelled to pay workers the national minimum wage. If an exemption period is granted, it must be in place for a minimum of three months and no more than twelve.

Working hours includes overtime, time travelled where it is part of the job, or time spent on a training course authorised by the employer which is within the normal working hours. Working hours does not include time spent on standby outside the workplace, time absent from work on sick/parental leave, and time spent travelling to and from the work place.

Disputes with the Employer over the Minimum Wage: An employee is entitled to request from their employer a written statement of the employee’s average hourly rate of pay for any pay reference period falling within the 12 month period immediately preceding the request. The employer has 4 weeks to furnish the employee with such statement. An employee contesting compliance with the Act is assisted by section 22(3). Subsection (3) provides that where an employer fails to keep records under subsection (1) the onus of proving compliance with the Act, in proceedings before a Rights Commissioner or the Labour Court, shifts to the employer.

If an employee believes they are not being paid the national minimum wage then they have two options when making an online complaint on the workplacerelations.ie website. (i) An employee may request an inspector from the NERA to investigate a claim that the legislative rate is not being paid; or

How to Calculate Your Hourly Rate: Put simply, to determine whether an employer is paying their employee the minimum hourly rate in a pay reference period (which may not exceed one month), the gross remuneration shall be divided by the total working hours in the pay reference period.

Gross remuneration only includes reckonable components; this includes the basic salary, shift premium, commission/bonuses (must be productivity related) or any food (board) or accommodation (lodgings) which an employer provides for their employee. With regards to board and lodgings, there are prescribed amounts which are to be included in the minimum wage calculation.

Full Board & Lodgings: €7.73 per day/ €54.13 per week Full Board only:

€3.14 per day/ €21.85 per week

€4.60 per day/ €32.14 per week

10

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

(ii) An employee may refer a dispute to a Rights Commissioner. However, this may only be done after the employee has requested and obtained from their employer a statement outlining the average hourly pay for the required pay reference period or where they have not obtained such statement within the time period (4 weeks). An employee must refer the dispute to the Commissioner within 6 months (which may be extended to 12 months) since the statement has been obtained or the time (4 weeks) has elapsed.

low­paid sectors are set by Joint Labour Committees (JLCs). The Industrial Relations (Amendment) Act 2012 reformed the JLCs after a successful constitutional challenge was brought against them. The Act now ensures businesses can remain competitive and seek exemptions due to financial difficulty. However the wage rates set by a JLC for a specific sector can be legally enforceable in court. A number of statutory instruments implemented in January 2014 amended the scope of certain JLCs and abolished others. Some of the low­ paid sectors covered by JLCs include contract cleaning and hairdressing.

Other Wage­Setting Mechanisms: It is important to be aware that wage rates for certain

RIGHTS OF INTERNS

Hannah Cowley & Victoria Sweetnam Intern rights, or the lack thereof, are a worldwide issue for students. An internship offers students the opportunity to gain valuable knowledge and experience and to prove themselves as studious, hard­working individuals, often in the hope of being rewarded with a job in the future.

In 2013, the shocking sudden death of a summer intern at Bank of America, Merrill Lynch, ignited discussions regarding the increasingly common extreme working habits in certain professions. Moritz Erhardt died suddenly from an epileptic seizure after working for 72 hours with little or no sleep. It could not be confirmed that lack of sleep caused this seizure, however, exhaustion was assumed to have been a factor in triggering the tragic incident.

But how far does an intern need to go to prove to an employer that they are a valuable asset? And what legal protection, if any, is given to an intern?

certain rights governed by detailed employment legislation such as minimum wage, statutory minimum notice of dismissal and a limit on working hours.

Some work experience positions are automatically exempt from Irish employment legislation. These include apprenticeships and the Job Bridge scheme.

Apprenticeships are traditionally seen as a student and teacher relationship rather than one of employment.

The Job Bridge scheme is linked to the government and is for the unemployed receiving jobseekers allowance. In February 2015, it was announced that the Department of Social Protection will consider calls to reform the Job Bridge scheme later in the year after concerns were highlighted regarding intern pay levels and whether the fines incurred on companies for the mistreatment of interns were effective enough.

Legal Status of an Intern There is an evident void in legal clarity in Ireland regarding the legal status of an intern. There is no definition for the term “intern” or “internship” in Irish law.

Generally, an intern is considered to be an individual who is given the opportunity to gain relevant skills and knowledge by working in a profession of interest for a short period of time. It is important to establish whether one is entitled to employee status in Ireland as employees enjoy

Employment Status The rights of an intern depend hugely on whether or not they have employee status. To gain this status, the working arrangement must be consistent with a contract of employment and fulfil certain criteria; the employee must agree to provide work in exchange for a wage, they must agree to be subject to the employer’s control, and the other provisions of the contract must be consistent with it being a contract of service. If an intern can 11

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

successfully show that they have fulfilled these criteria they should be considered an employee, and therefore should also enjoy the privilege of employee rights.

In some instances, employers intentionally try to deny interns employment status in order to obtain low cost labour from interns, evade legal responsibility and for tax­gaining purposes. This can be done through the creation of ‘aspirational contracts’ whereby the language of the contract is vague and inconsistent with the typical language of a contract of employment. For instance, employment contracts are usually made up of two promises; the employee’s promise to provide his own work, and the employer’s promise to provide him with that work.

This is known as the ‘mutuality of obligation’; however some employers tactically eliminate this promise to work with a phrase like ‘it is hoped that the worker will work’. Here an aspiration replaces a promise and, it is argued, there is no contract, resulting in the employee failing to gain employment status.

The other main legal argument used by employers to deny interns employment status is payment. Without consideration, there is no contract.

The payment of expenses covering costs such as travel and lunch is not seen to be payment, but rather a form of reimbursement. Previously, a lack of any payment automatically denied an intern employment status. However, the law may be about to change. It has been argued that experience, knowledge and networking are also forms of consideration. It would be reasonable to assume that consideration in this form of experience and other useful, yet intangible, assets could now be considered as remuneration. The point is not, however, definitively settled.

However, an intern may be an employee if the contract expects work and promises some form of remuneration.

Guaranteed Intern Rights However, interns do have some rights regardless of whether or not they have employment status.

Firstly, interns are guaranteed the right to health and safety under the Safety, Health and Welfare at Work Act 2005 which includes the protection from working in unsafe environments and the entitlement to public holidays, sick days and annual leave. They are also protected from discrimination contrary to the Employment Equality Acts 1998­2011 on grounds such as gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. Thirdly, an intern’s personal data is protected under the Data Protection Act 1988 and 2003 which considers an employer the data controller, and the employee a data subject. The employer is obliged to protect the intern’s data, and an intern has a right to know what data is being held about them, to know whom it is disclosed, and to have it amended or deleted if incorrect. And lastly, the Irish Congress of Trade Unions have outlined that interns have the right to join a trade union and to participate in trade union activities, regardless of their employment status, or lack thereof.

It is clear that the status of employment is vital when determining the rights of an intern. It is particularly important for students to be aware of their guaranteed intern rights, especially in professions that seem to promote extreme working habits.

ZERO­HOUR CONTRACTS Grace Bolger

Recently, zero­hour contracts have been a controversial subject in the media, and one which strongly affects students. This constant uncertainty of working hours disturbs the employee’s daily routine, flow of income, financial stability and long­term career plans. In April 2014, a study showed that 147,000 people in the Irish economy were

‘underemployed’; meaning they were unable to get enough working hours. However, from the employer’s perspective, it allows them to match the supply of labour with demand and keep costs at a minimum. Some employers have even admitted that if the legislation surrounding zero­hour contracts was stricter, they would hire less staff, resulting in an 12

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

compensated with the amount that brings their earnings up to 25% of the possible available hours.

If a dispute occurs between an employee and an employer over zero­hour contracts, the employee can bring an action under the Organisation of Working Time Act 1997. This complaint must be lodged within 6 months of the dispute occurring, or if there was reasonable cause that the employee did not lodge the complaint within the 6 months, the time limit may be extended to 12 months. A complaint can be filed by filling out an online form which is found on www.workplacerelations.ie.

Under Section 18, in order to be recognised as a protected zero hours worker, it is a condition that the employment contract requires the worker ‘to make himself or herself available to work for the employer in a week’. It will not apply to a contract in which the employee is free to refuse work if offered it. It will also not apply if the employee has been laid­off or the relationship is suspended. In these cases there will be no duty to ‘make him or herself available’ and, therefore, no right to compensation. In one case where the contract provided that the employee was to have ‘the right to refuse or accept these hours … [and was] not expected to be on call for work’ the claimant was held not to be a zero hours’ worker for the purpose of the minimum wage under section 18.

increase in unemployment.

A zero­hour contract is a contract of employment where the employee is available for work but is not given guaranteed hours of work per week. It involves a formal arrangement whereby the employee is required to be available for a certain number of hours per week, or when required, or both.

Fortunately, pure zero­hour contracts do not exist in Irish law as workers are protected by legislation which guarantees compensation for the lack of working hours. In the UK, no such protection is offered to workers, creating an even more unstable lifestyle for employees working under this type of contract.

Under Irish law, Section 18 of the Organisation of Working Time Act 1997 states that employees are entitled to compensation where they have been offered less than 25% of their working hours in any week. The level of compensation that they are entitled to depends on how many hours of work the employee completed, if any at all.

If the employee did not work any hours, they are entitled to compensation worth either 15 hours of work, or 25% of the possible available hours. The lesser amount is accepted as the compensation they are entitled to.

If the employee worked some hours, they will be

PROTECTING WHISTLE­BLOWERS Aodhán Mc Gourty

reckless and fraudulent behaviour in Irish banks and potential corruption in local and central government.

More recently, the media delivered a highly dramatised account of consequences flowing from the exposure of malpractice in the penalty points system by two whistle­blowers, Gardaí Maurice McCabe and John Wilson in 2013 and 2014.

However, speaking out can carry a high personal price. Depending on the country, whistle­blowers may risk their careers, reputation and even personal safety by exposing wrongdoing. Accordingly, states must ensure that there are legal protections in place to provide whistle­blowers with employment and personal security, as well as sufficient investigation procedures and controls on defamation laws.

Prior to the introduction of the Protected

Stories of corruption and political and corporate misconduct regularly dominate the front pages of our newspapers. Often these stories only come to light because people have disclosed information about organisations which was never intended to become public. These people are called whistle­blowers. By exposing wrongdoing, they play an invaluable role in protecting public health, human rights, the environment, financial integrity and the rule of law.

In Ireland, whistle­blowers have exposed mistreatment and sexual abuse of hospital patients, 13

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

The law provides for a "stepped approach".

This means that where nothing is done at local level following a disclosure, whistle­blowers can report the activity to a higher authority or the relevant minister. This helps to ensure whistle­blowers’ concerns will always be investigated.

There is nothing in the Act which prohibits a worker from making a disclosure to the media.

However, in order to avail of the protections, it must be reasonable for them, in all of the circumstances, to make the disclosure. In assessing reasonableness, the seriousness of the wrongdoing will be relevant.

Once a wrongdoing is reported, the person making the protected disclosure has certain protections including protection against victimisation, criminal proceedings and most civil proceedings. Employees may receive up to five years’ remuneration if dismissed for making a protected disclosure. In addition, an employee who is dismissed can apply for an injunction to be reinstated. Whistle­blowers can also avail of absolute privacy except in particular circumstances.

Importantly, those who engage in whistle­ blowing have an entitlement to protection even where it transpires no wrongdoing has actually occurred. This will arise if the whistle­blower reasonably believed that the information disclosed was substantially true. The legislation does not provide protection to whistle­blowers from defamation claims, but they may be able to avail of the defence of “qualified privilege”.

While the Act may not prevent unscrupulous employers from continuing to target whistle­ blowers, it offers a safety net to those who choose to speak up. Based on experiences in the UK, it has been proven that far more people are encouraged to speak out where there are legal safeguards for whistle­blowers in place. These new legislative protections will ensure that whistleblowing continues to play an effective role in fighting corruption in Ireland.

Disclosures Act 2014, Ireland lacked a designated law to protect whistle­blowers. Instead, it relied on piecemeal provisions covering the reporting of wrongdoing in certain identified areas, such as child abuse, malpractice by the police, health and safety hazards and white­collar crimes. However, gaps in protection remained, both in terms of who could avail of protection and the types of protection available.

Such gaps were well­illustrated by the highly publicised case of Louise Bayliss, an employee of the Irish Advocacy Network who was fired after she made a disclosure on a call­in radio show about five psychiatric patients who were to be kept in a locked hospital ward over the Christmas holidays in 2011.

While she was offered her job back after the scandal reached the national media, the wide press coverage of the event became a major stimulus for the introduction of legislation in this area.

The Protected Disclosures Act 2014 was brought into law on 15 July 2014. It draws on best practice internationally and is considered one of the strongest whistle­blower protection laws in the world. The purpose of the Act is to protect workers and to allow them to make disclosures of wrongdoings to their employer or, in certain circumstances, to others, freely and without fear of recrimination. The broader objective of the Act is to promote a culture of public accountability and transparency.

One important characteristic of the Act is the far­ reaching nature of its provisions. It offers protection to ‘workers’ in the private, public and non­profit sectors. A ‘worker’ under the Act, may include independent contractors, agency workers, trainees and even volunteers. Furthermore, it provides a comprehensive list of the types of wrongdoing that can be reported. These include criminal offences, threats to health and safety or the environment, breaches of legal obligations, miscarriages of justice, improper use of public funds or any attempt to conceal information in relation to such wrongdoings.

While workers are encouraged to first inform their employer about wrongdoing under the Act, the legislator has recognised this option is not always practicable. In such circumstances, an employee may make a disclosure to a person other than their employer provided it isn’t for personal gain, i.e. where they believe it to be substantially true and it is reasonable in the circumstances.

14

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

SECTION 3: SOCIAL AND FAMILY AFFAIRS IN VITRO FERTILISATION Roryann Sweeney

What is In Vitro Fertilisation?

In vitro fertilisation (IVF) is one of the Assisted Human Reproductive Services that is offered in the Republic of Ireland. After the first successful birth by IVF in Ireland in 1985 the procedure has grown significantly in popularity.

In vitro fertilisation is fertilisation that occurs outside of the human body. A woman’s eggs are extracted and fertilised in a laboratory. The resulting embryo is then implanted into the woman’s womb. The surplus embryos not used in the immediate transfer may be frozen for further use by the couple. According to the Commission on Assisted Human Reproduction, if frozen embryos remain after the couple has completed treatment there are other options such as donation to another couple, donation to research and destruction.

The use of in vitro fertilisation in Ireland also brings to light several constitutional issues. Article 40.3.3 of Bunreacht na hÉireann states ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the right.’ As there is currently no legislation in place governing in vitro fertilisation, it is unclear as to what protections this constitutional right offers in the IVF process. In order for there to be clarification on this issue, there would either need to be intervention by the Supreme Court or the holding of a Constitutional Referendum.

In the absence of such, however, the decision of the Supreme Court in 2009 following Roche v Roche sheds light on this area. In this case, the Supreme Court held that the right to life only arises after implantation.

There are also EU regulations which impact on in vitro fertilisation in Ireland. These include The European Convention on Human Rights and Biomedicine (1997) and the Charter of Fundamental Rights (2000). There is also the EU Tissue Directive 2006/7 Article 152 which has been implemented in Ireland by the Irish Medical Board and governs laboratory practice which covers the donation, procurement, testing, processing and distribution of human tissue and eggs.

The Law in Ireland on In Vitro Fertilisation Currently in vitro fertilisation is not offered by the Irish public health services, the Health Service Executive. It is provided by private independent clinics and is not governed by any statute.

However, the Medical Council of Ireland has issued ethical guidelines and this explains the situations in which it is appropriate for doctors to carry out in vitro fertilisation. The Commission on Assisted Human Reproduction noted that the number of procedures that are emerging in the wake of in vitro fertilisation such as cryopreservation, embryo research, preimplantation genetic diagnosis (PGD), regenerative medicine and reproductive cloning give rise to new ethical issues in society. This would be of particular concern in a country such as Ireland that is still very conservative in its approach to such matters interfering with the natural transition of life. However, there has been a change in attitudes towards controversial issues such as contraception and abortion and this demonstrates that perhaps a change in relation to in vitro fertilisation is on the horizon.

Framework for Greater Clarity in the 21st Century The Commission on Assisted Human Reproduction was established in 2000 by the then Minister for Health and Children, Micheál Martin T.D. The aim of establishing this Commission was ‘to prepare a report on the possible approaches to the regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in the area’. In 2005, it issued a report 15

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

considered to be the mother regardless of whether or not she has a genetic connection to the child. The husband, civil partner or co­habitant of the birth mother will be deemed to be the other parent provided that they have consented to this and have not withdrawn this consent before conception, with consent presumed unless the contrary is proven.

Many amendments have been made to the Bill since it was proposed in 2014 and the Bill was passed with over 100 amendments by the Seanad on March 30th 2015 and at date of publication, was awaiting presentation to the President to be signed and declared as law. The issue of in vitro fertilisation is now dealt with under Part 2 “Parentage in cases of Donor­Assisted Human Reproduction” and Part 3 “Donor­Assisted Human Reproduction”. Despite the many amendments that have been made, the underlying policy remains that the birth mother with her husband, civil partner or co­habitant will be the parents, with the donor having no parental rights over the child.

The 2014 Bill provides clarification as to who the parents of a child born through in vitro fertilisation are. It also provides security in the sense that it will be irrefutable and unaffected by any disputes between parents. It is argued that the Children, Family and Relationships Bill will create a much needed updated legal framework for the modern Irish family.

stating how the process could be regulated by looking at how it is governed in other countries.

From this, it made many recommendations such as that there should be a statutory body created. It also recommended that this regulatory body should have power to address cases where gametes are abandoned, in accordance with statutory guidelines, where the commissioning couple cannot agree on a course of action, where couples separate or where one or both partner(s) dies or becomes incapacitated.

In making these recommendations, the Commission looked at how other countries have brought in statutory regulations. This Report was referred to the Oireachtas Joint Committee on Health and Children in May 2005 and provided a basis for informing the future public debate which has recently resulted in the proposition of the 2014 Bill which aims to clarify the matters on hand.

In January 2014 the Minister for Justice, Equality and Defence published the General Scheme for the Children, Family and Relationships Bill 2014 aiming to modernise many aspects of family and child law, in vitro fertilisation included. The Bill, as it was then proposed, dealt with the issue of parentage in relation to Artificial Human Reproduction under Head 10, ‘Parentage in the cases of assisted reproduction other than surrogacy’. This section laid out a clear framework for deciding who the parents would be. In summary, what was proposed was that the birth mother always be

ABORTION Eve Kennedy

requiring access to an abortion. This was addressed in 1992 in the X case. This landmark judgment in Irish law concerned a fourteen year old girl who was pregnant as a result of rape, was now suicidal and wished to travel to Britain to obtain an abortion. However, the Attorney General sought an injunction to prevent the abortion and the case reached the Supreme Court. The issue was whether Article 40.3.3 allowed for X to exercise her right to travel for an abortion or whether such was precluded. The balance of the right to life of the mother against the right to life of the unborn was called into question. The Supreme Court held that a

Right to Life of the Unborn and the Risk to Life of the Mother Elective abortion of a pregnancy in Ireland is illegal.

Following the Eight Amendment, which was approved by the 1983 referendum, Article 40.3.3 was inserted into the Irish constitution, stating that "the state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as is practicable, by its laws to defend and vindicate that right.”

The right to life of the unborn has met some challenges, such as a risk to the life of the mother 16

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

baby would be born missing a large portion of its brain and would die within a few days of birth. Miss D sought an abortion as she did not want to endure the trauma of carrying the child to full term and undergoing the delivery. However, she was not suicidal. While Miss D could travel for an abortion, it is clear from this case that there is as yet no entitlement to have an abortion in Ireland if a foetus will be born with severe birth defects. As the child would be born alive they would acquire legal personality regardless of how short that life would be.

woman had a right to an abortion if there was a ‘real and substantial risk to her life”, which included the risk of suicide. Abortion will thus be an option where it is necessary to remove the foetus to save the mother’s life. The view is taken that the child will not be able to survive without the life of the mother, meaning that in cases concerning a substantial risk, the life of the mother will outweigh the life of the unborn. This position was strengthened by the 2010 European Court of Human Rights decision in A, B and C v Ireland.

Currently, when considering whether abortion is a viable option in a suicide case, a panel of experts must conduct an examination and agree that there is a risk to the woman’s life that can only be solved by termination of a pregnancy. This must happen in a timely manner and must satisfy the requirements of the Protection of Life during Pregnancy Act 2013, which was enacted following the decision of the A, B and C v Ireland case coupled with the tragic death of Savita Halappanavar.

However, the Miss Y case in September 2014 further highlighted the need for reform in terms of the law on abortion in Ireland. Having been raped prior to entering Ireland, Miss Y discovered she was 8 weeks pregnant and sought an abortion as she was at risk of suicide. While the debate was ongoing, arrangements for her travel began but were never completed. She was ultimately forced to deliver the baby by Caesarian as the decision was not reached until the foetus had grown to 25 weeks, at which point doctors would not perform an abortion. This case called into question the implications of the 2013 Act and the co­ordination of the various bodies at work in cases concerning abortion.

It must be noted that the risk to the life of the mother is differentiated from the health of the mother. While the life of the child is contingent on the life of the mother, it is not contingent on her health. In essence, the constitutional right to life of the unborn will precede the right to bodily integrity of the mother.

It remains illegal in Ireland to carry out an abortion simply because of rape, incest or lethal foetal abnormality. The latter was addressed in the case of ‘Miss D’. There, a young girl became pregnant and the unborn baby was subsequently found to be suffering from anencephaly, meaning the

Right of Access to Information and Right to Travel Under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 access to information on overseas abortion may be made available under certain conditions. The right of access to information on abortion had previously been challenged in Attorney General (SPUC (Ireland) Ltd.) v Open Door Counselling Ltd in 1988, where information had been provided about abortion services in the UK. The Supreme Court ruled that the provision of information was a violation of article 40.3.3ᵒ. The court held that they were obligated to protect the life of the unborn in this instance. It was argued that there could be no unenumerated right to information of overseas services which, if they were to take effect, would directly undermine the constitutionally protected right to life of the unborn.

However, this was successfully challenged in the European Court of Human Rights which found that the SPUC case was in breach of Article 10 of the European Convention on Human Rights, which protects freedom of expression.

Information on abortion may now be made available by doctors, counsellors and agencies. A distinction is drawn between general public information campaigns and information provided to an individual private patient, with only the latter being permissible. There is still no obligation to provide information on abortion, but the 1995 Act lays down the rules concerning those agents who choose to offer information to citizens. For example, abortion must be lawfully available in the country under discussion, all information must 17

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

comply with the procedures laid down in that country, the information must be objectively delivered and it must not advocate for one side or another. In addition, this information must not be publicly distributed. It is illegal for a doctor to encourage an abortion or to call and make an appointment with a clinic on behalf of a pregnant woman.

Following from the judgments of Open Door Counselling, the government proposed three amendments to Article 40.3.3ᵒ in 1992. As a result, there is now a constitutionally guaranteed right to receive information on legal abortion in other jurisdictions and in addition, the right to travel for an abortion cannot be interfered with by the state.

However, the third proposal to remove suicide as grounds for abortion was defeated. It was subsequently rejected again in 2002.

Possible Future Reform The future of abortion in Ireland remains unclear.

Legislative reform in this area appears to have come to a halt following the Protection of Human Life during Pregnancy Act 2013. Despite its introduction, advocates on both sides of the political debate continue to call for a further referendum to consolidate this area. The current government seems to have no plans to return to the issue, with comments having been made that it would fall to a future government to decide on whether to hold another national vote on abortion.

To conclude, this vastly debated and immensely controversial area of Irish legal and social life will undoubtedly undergo further changes in the 21st century. It is evident that this is an incredibly difficult area to legislate for and it will undoubtedly split public opinion in any upcoming referenda.

FATHERS' RIGHTS Kate Moloney

Fathers’ rights, in particular that of unmarried fathers, is a highly controversial area of Irish law.

As it stands, a father’s right to their child depends on whether or not they are married to the mother.

Unmarried fathers essentially have no rights to their children. As Irish society moves further into the 21st century, the traditional family structure of a married father and mother no longer reflects modern realities. In 2013, almost 37% of all births in Ireland were registered outside of marriage.

With single fathers already constituting a substantial proportion of parents in Ireland, we can expect to see significant changes in this area of law over the coming years.

as education, religion and healthcare.

If the parents are not married at the time of the child’s birth, but subsequently marry, the father will still be treated as a married father and automatically becomes a joint guardian of the child with the mother. The child is presumed to have been a child of that marriage. This may raise problems if the child is subject to adoption proceedings with another family at the time of the marriage.

Unmarried Fathers: If the parents of a child are unmarried, the Children’s Act 1997 gives the sole right of guardianship to the mother. Assuming financial responsibility for a child or including a father’s name on a birth cert does not grant unmarried fathers any automatic legal rights to their children.

However it is possible for them to acquire guardianship, custody or access rights by obtaining the agreement of the child’s mother or through court orders.

The father can become a joint guardian by

Married Fathers: The status of married fathers in Ireland is relatively straightforward. If married to the mother, the father has the same automatic rights as the mother.

Married parents are automatically “joint­guardians” with equal rights over their children. As a guardian, the father is entitled to make or contribute to important decisions about the child’s welfare, such 18

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

married fathers or for mothers. The only way a mother can give up her guardianship rights in Ireland is if the child is placed for adoption.

It should be noted that all fathers, irrespective of marital status, guardianship or whether their names are on the birth certificates, have an automatic legal responsibility to financially maintain their child. Therefore, unmarried fathers have automatic legal obligations in respect of their children yet still have no rights.

The traditional rationale behind not allowing an unmarried father rights to his children was to protect women and children in cases of domestic violence, incest and rape. However, these cases are the exception as opposed to the norm and many argue it is more appropriate to change the law so all unmarried fathers are not punished. Under this approach, guardianship rights would be automatically granted to all fathers, regardless of marital status, and then taken away from those who don’t deserve it.

agreement if both parents sign a statutory declaration in the presence of a Peace Commissioner or Commissioner of Oaths. This declaration states the parents are unmarried, they have agreed to be joint guardians and they have agreed on the specific arrangements for custody and access to the child.

The father can also become a joint guardian by applying to the District Court for a court order.

The father can represent himself in his application and may apply even if his name is not listed on the child’s birth certificate. The court will make an order based on what is in the child’s best interests, so while the judge will take into account the mother’s wishes and her lack of consent, that will not automatically mean that the order will be refused.

However, Finlay CJ in the case of K v W in 1990 emphasised that there is only a bare statutory right to apply and that there is no natural or constitutional right to be appointed as a guardian. He also felt that the biological link between the father and child was only one of many factors to be considered and that it didn’t give any bias or advantage in the application. In 1996, however, Denham J (as she then was) commented on the issue in W.O’R v E.H., speaking of the rights of interest and concern of the father being directly in proportion to the circumstances that existed between the father and the child. She seemed to feel that the blood link was more significant where there was a stable relationship.

Where a father is not a joint guardian, and even where his application to become a joint guardian has been refused, he may apply for access to his child. The best interests of the child are the paramount consideration in an application for access. The Irish courts tend to focus on a child’s right to have access to their father, thus an application for access will be only be denied in rare cases.

Another notable disparity in how unmarried fathers are treated under Irish law is that even when they have been appointed as joint guardians, the court has discretion to remove them from this position where it is viewed to be in the best interests of the child. This is not the case for

Will Anything Change?

Groups supporting unmarried fathers have been calling for urgent legislative reform to provide automatic guardianship rights to unmarried fathers for several years, but as 21st century Ireland continues to see a rise in the number of non­marital families, calls for change have never been louder.

These appeals made national headlines in January 2014 when a father had to seek court intervention in order to allow him to consent to the withdrawal of his child’s life support after the mother’s death.

Eamon Quinn of the Unmarried and Separated Parents of Ireland pointed out that “If this case had happened ‘up the road’ in Belfast, the father would have automatically been the person making the decisions about his baby without having a court case added to his ordeal”.

Draft legislation was laid out in 2014 which proposed to combat the issue of guardianship for unmarried fathers. The revised General Scheme of the Children and Family Relationships Bill was published in September 2014 by the Minister for Justice and Equality. The Bill deals with a number of issues and generally puts children at the heart of family law reform and addresses the many forms of discrimination faced by children in non­marital 19

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

families. The Bill has been warmly welcomed by many commentators as it brings legal clarity to the many children born outside marriage or who are being cared for in blended families. The Bill ensures that courts must make decisions in their best interests and outlines how judges will consult with children in relation to family law matters.

Following a great deal of debate, many amendments were made to the Bill and it now deals with the Guardianship of Infants Act 1964 in Part 4. A notable amendment introduced by the Seanad for unmarried fathers is that where a father has been registered as the father in a register of births, he will become a guardian 60 days after the birth of the child if the mother does not make a statutory declaration that he is not a guardian of the child. Where the mother does make such a declaration, the father may apply to the District Court for an order declaring him as a guardian and the court will grant an application for joint guardianship to a father unless it is satisfied that he is not a parent of the child, that it would not be

in the best interests of the safety of the child or mother, or that the child was conceived as a result of an unlawful act. In other applications for guardianship, there will be a rebuttable presumption that it is in the best interests of the child that their parent be appointed as a guardian.

The Bill also provides for the establishment and maintenance of the Central Register for Statutory Declarations for Joint Guardianship. The Bill was passed by the Seanad on March 30th 2015 and at date of publication was being prepared for presentation to the President to be signed and declared as law. Once enacted, a complete version of the Act will be available to view at www.oireachtas.ie.

While the Bill does not guarantee automatic guardianship for all fathers, it can be argued that it reflects major development in the law protecting unmarried fathers, and can hopefully be viewed as the beginning of a 21st century movement towards more fair and equal treatment of unmarried fathers.

PRE­NUPTIAL AGREEMENTS Kate Moloney

What is a Pre­nuptial Agreement?

A pre­nuptial agreement is an agreement between a couple intending to marry which makes provision for certain financial and property matters in the event of a breakdown of the marriage. The agreement may cover issues such as lump sum payments, maintenance, pensions and custody of children. The advantages to such an agreement include peace of mind, security and ultimately, the minimisation of disputes should separation occur.

Often, pre­nuptial agreements are perceived as existing to serve the rich and famous. Last year, in the entertainment world, one might recall how Kim Kardashian and Kanye West had to postpone their wedding date due to prolonged and hard­fought negotiations in terms of their pre­nuptial agreement. However, in reality, the preconception that pre­nuptial agreements are only for the rich and famous is totally unfounded. More and more people from varying backgrounds and financial situations are now opting to negotiate pre­nuptial

agreements. In 2010, a Harris Interactive Poll found that 44% of single and 49% of divorced Americans supported the idea of signing a pre­ nuptial agreement. Similarly, a survey by the American Academy of Matrimonial Lawyers found that 63% of divorce attorneys in the United States had seen an increase in pre­nuptial agreements between 2010 and 2013, with 46% noting an increase in the number of women initiating requests. Marion Campbell, a family law practitioner in Dublin, has noted a similar trend in Ireland, having had a number of queries from property­owning women in their 30s who are close to the top of their careers.

The Central Statistics Office found that while Ireland still had the second lowest divorce rate in Europe, the marital breakdown rate had risen from 8.7% in 2006 to 9.7% in 2011. While the divorce rate is still relatively low, the CSO said that as divorce generally requires a period of separation in the first instance, the figures on marital breakdown 20

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

contrary to public policy. Macleod applied explicitly to post­nuptial agreements only, with the court stating that it could not reverse the established rule that pre­nuptial agreements were against public policy and contractually invalid.

However, in 2010, the UK Supreme Court in Radmacher v Granatino agreed with the Macleod view that the old rule that agreements providing for future separation were against public policy was “obsolete and should be swept away”, but held that this was not restricted to post­nuptial agreements.

The court felt that there was no material distinction between a contract signed a day before the wedding and one signed the day after. While these cases are not binding in Ireland, they are certainly relevant and can inform future decisions on an argument of public policy.

Although recognised in many countries across the world, pre­nuptial agreements have yet to be recognised as binding in Ireland. Yet, they are also not expressly illegal. There is no provision in Irish law preventing a couple intending on marrying from signing a pre­nuptial agreement. In fact, family law legislation refers to these agreements, but with the proviso that a judge may vary the agreement at his/her discretion. In essence, this means that the court can ignore the agreement and distribute assets between the parties in a manner which may not have been envisaged by the agreement. While the court may not be obliged to enforce the agreements, they can act as a useful guide for a judge when dealing with judicial separation or divorce cases.

In order for the court to consider the terms of a pre­nuptial agreement, it is advisable that certain requirements be complied with by both parties:

reflected both a progression for people from separation to divorce, combined with new numbers joining the category of separation. With that rate consistently rising in recent times, it is of little surprise that more couples are interested in negotiating pre­ nuptial agreements to provide some certainty in the event of marital breakdown.

What Status do Pre­nuptial Agreements have in Irish Law? Article 41 of the Constitution originally expressly stated that any such agreement was unconstitutional. However, the removal of the constitutional ban on divorce changed this position. Traditionally, pre­nuptial agreements were also deemed void at common law under public policy. As they envisaged a breakdown in marriage, they were considered contrary to the common good and were regarded as an inducement to leave a marriage. It has been argued that due to the increased availability of no­ fault divorce, arguments that pre­nuptial agreements encourage marital breakdown have lost their force. If divorce is now publicly sanctioned and no longer connected with immorality, why should a couple not think ahead and cater for it? In addition, in 2012 a survey in the US found that 86% of experts agreed that a pre­nuptial agreement had no predictable impact on a couple’s likelihood of divorce.

Recent English decisions can also inform the common law public policy issue in Ireland. In 2008, in Macleod v Macleod, the Privy Council held a post­nuptial agreement to be valid, rejecting the argument that such agreements were

• they both obtain legal advice, • there is full disclosure of each party’s financial affairs • there is an express acknowledgment that the agreement is to be legally binding, and • they agree to percentage split of the assets, maintenance and custody in the event of the breakdown of the marriage.

It is also advisable for the agreement to provide for reviews periodically, if children are born and if 21

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

there is a major change in circumstance.

The main concern is that proper provision be made for both spouses in the event of marital breakdown. If the agreement provides for this, a judge may choose to enforce it. They are more likely to ignore the agreement where the couple’s circumstances have changed substantially since the document was signed, or where one partner has become dependent on the other and the agreement didn’t provide for that.

bargaining position.

The report made recommendations on the formalities necessary for the proper making of pre­nuptial agreements so that parties would be fully informed and protected.

These included the following: • The agreement should be in written form, be signed and witnessed; • The parties should each have received separate legal advice as to the effect and meaning of the agreement; • Each of the parties should have made disclosure of all relevant financial information; • The agreement should be executed not less than 28 days before the marriage.

Future of Pre­Nuptial Agreements in Ireland In December 2006, a study group on pre­nuptial agreements was established by the Irish government to study and report on the operation of the law with respect to pre­nuptial agreements since the introduction of divorce in 1996. The Study Group published its report in April 2007, recommending that pre­nuptial agreements be legislated for by way of amendments to the Family Law Act 1995 and the Family Law (Divorce) Act 1996 to require that the courts have regard to existing pre­nuptial agreements when making ancillary relief orders in judicial separation and divorce proceedings. The Study Group emphasised that judicial scrutiny of the agreement would still be necessary to ensure that “proper provision” is still always made, allowing continued protection for parties who may find themselves in a weaker

However, the report’s recommendations have not yet been implemented. Ireland is still left with the unsatisfactory state of law where it is up to the judge’s discretion whether to take the agreement into account or not. This lack of certainty for couples is unfair and can cause a great deal of added acrimony and distress, in an already difficult process. One can only hope that we will see the legislature take action in the near future to provide certainty in this area and to allow couples to take control of their own lives.

SURROGACY Erinne FitzGerald

Modern developments in reproductive technology have created legal ambiguity over the definitions of parenthood.

In particular, the maxim ‘mater semper certa est’ (‘the mother is always certain’) can no longer be considered an indisputable fact.

In Ireland the law in relation to IVF is significantly lacking. Considering the constitutional status of the family, the law should reflect with certainty any evolution or expansion of its meaning, including any technological advances that may challenge the parameters of these definitions. Currently, the law, unperturbed by modern developments, states that the birth mother must always be considered the mother of the child. A consequence of this

traditional interpretation has meant that many women using surrogates to carry their children are excluded from being considered as their child’s legal mother.

These problems will only be exacerbated in the 21st century unless the necessary reforms are introduced.

Current Difficulties in the Law The recent 2014 Supreme Court decision in M.R. v Attorney General highlighted the difficulties surrounding surrogacy. Here the Supreme Court overturned a High Court order that allowed the genetic rather than the birth mother to be registered as the legal mother of twins born out of a surrogacy 22

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

for many families. Many children born under such arrangements have now reached adulthood, yet the law in this jurisdiction has largely ignored the issue despite ample legislative opportunity.

In his authoritative judgment in M.R. v Attorney General, Hardiman J. called for much needed legislation in this area by the Oireachtas and adamantly held that it was not a matter for the courts to decide. Other Common Law jurisdictions have been far more diligent in legislating for such important modern developments.

In England, for example, Parliament enacted the Human Fertilisation and Embryology Act in 1990 ­ a quarter of a century ago. As amended in 2008, this legislation leaves the legal status of children born in IVF situations (whether through use of a surrogate or through donor eggs and sperm) on a stable and certain footing.

The Oireachtas in September 2014 published the General Scheme of Children and Family Relationships Bill 2014, dealing with the legal status of IVF families. If enacted as proposed at that time, this Bill would have provided parents using a surrogate with legal certainty and equal status.

Like the Human Fertilisation and Embryology Act 2008 in England, this Bill acknowledged modern advances in reproductive technologies. It purported to expand the traditional explanations of motherhood and fatherhood to include the necessary modern advances where appropriate, thus eliminating the ambiguity and disappointment that faces many families today.

Under Head 13, an application could have been made to the court for a declaration that a surrogate was not a parent to the child and that instead the parents were the persons whose genetic material were used in the assisted reproduction. This provision could also have been used where a man or woman alone had donated sperm/an egg, and in this case their spouse, civil partner or co­habitant could also be declared the child’s parent, if they had consented to being a parent.

Importantly, a declaration would only have been made where the surrogate consented to the order declaring her not to be a parent. This consent was essential as if she did not consent, she would be the legal mother of the child and no surrogacy arrangement would be enforceable against her.

arrangement. While the parties to this agreement agreed that the twins were to be raised by their genetic parents, problems arose when the genetic mother was barred from having her name listed on the birth certificates. Instead, the surrogate mother and the genetic father were listed as the legal parents.

The High Court had found that parenthood was contingent on ‘blood links’ and as such, the genetic mother must be deemed the children’s legal mother.

However, on appeal the Supreme Court identified a serious consequence of such an interpretation in that any egg or sperm donor in an alternative type of IVF arrangement would be deemed the parent rather than the mother carrying the child, which would obviously be an undesirable and unintended outcome. The High Court decision was overruled by the Supreme Court on the basis that there was no law accounting for such modern developments. As such, only the birth mother could be considered the legal mother whilst the genetic mother could only receive adoptive rights.

This is clearly an unsatisfactory outcome for all involved. However, as the law in Ireland has not simultaneously evolved with the technology, the outcome of any such dispute must, disappointingly, remain rooted in the past. Furthermore, the law as it currently stands, leaves women who are unable to have children of their own at a distinct disadvantage to their male counterparts. The genetic father is considered the legal father, yet his wife may only be considered as their adoptive mother. This is an inequality that must be addressed.

The legislator however, is not entirely to blame.

The whole debate on the area of motherhood has, until recently been very scant. Whilst definitions of fatherhood have, throughout the years, been exhaustively examined; definitions of motherhood have largely been ignored. To some extent this is understandable, as the maxim states ‘mater semper certa est’. However, such a simplistic definition is no longer satisfactory.

The Case for Reform A ‘one­size­fits­all’ explanation of motherhood can no longer be a definitive legal test. Due to the advancement of reproductive technologies the situation is now more complex. Over the last few decades, IVF and surrogacy have become a reality 23

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

Surrogacy is becoming an important aid to many couples in Ireland hoping to have children, with several thousand families having already successfully used the technology. The legislature in the 21st century can no longer ignore the increasing demand for surrogacy across Ireland. Parents and children of such arrangements should be provided with certainty as to their legal status and should not have to resort to convoluted legal proceedings.

Recent trends in marriage and birth rates indicate that many women are waiting later and later to have children, with this delay having obvious repercussions for general female fertility. As such, it is expected that the demand for such reproductive technologies can but grow, thus affecting more and more families throughout Ireland.

IVF and surrogacy are rapidly becoming a reality for many modern Irish families living in the 21st century͞ to place it on a legislative footing would address the now outdated maxim ‘mater semper certa est’ and propel Irish family law towards a more modern and progressive perspective.

The Bill purported to regulate surrogacy arrangements, including setting a minimum age of 21 for a surrogate mother and a prohibition on payment or advertising.

These reforms may have been a welcome and necessary addition to Irish family law. However, the provisions dealing with surrogacy were subsequently removed from the Bill and were not included when the Bill passed report and final stages in the Oireachtas in March 2015. The removal of the surrogacy provisions from the Bill were criticised by the former Minister for Justice Alan Shatter as being a breach of faith with the Supreme Court, who had ruled in favour of the State in a recent surrogacy case when informed that the Government had published draft laws on the issue and planned to enact them as part of the Children and Relationships Bill. The Supreme Court judgments were highly critical of the absence of any law on surrogacy. At time of publication, the Bill was being prepared for presentation to the President to be signed and declared as law, without any provisions on surrogacy included.

24

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

SECTION 4: INTERNATIONAL LAW AND HUMAN RIGHTS RESPONSIBILITY TO PROTECT: A HOLLOW DOCTRINE? Áine O'Shea 2015 marks the ten year anniversary of the doctrine of the Responsibility to Protect (R2P). It was unanimously adopted by Heads of State at the United Nations World Leaders Summit back in 2005. On January 8th of this year, in his informal address to the General Assembly, United Nations Secretary­General Ban Ki­Moon noted that despite its endorsement of the R2P norm, the international community has been slow to act on early warning signs in too many crises, and he announced his re­commitment to operationalise the norm.

The Responsibility to Protect, a novel and evolving concept in international law, aims to address the failure of states to protect their populations from mass atrocities such as genocide, crimes against humanity, war crimes and ethnic cleansing. The doctrine of R2P essentially concerns the international community’s obligation to intervene in a State’s domestic affairs where that State manifestly fails in its primary duty to protect its citizens from such atrocities.

The doctrine was first articulated in December 2001 in the Report of the International Commission on Intervention of State Sovereignty (ICISS). This is an independent international commission established by the government of Canada. The ICISS Report was a response to the then­Secretary General Kofi Annan’s call for the international community to take action following the commission of a series of large scale atrocities, namely the genocide in Rwanda in 1994 and the ethnic cleansing in the Balkans which culminated in the Srebrenica massacre in 1995.

These events brought the issue of humanitarian intervention to the forefront of international

debate. They highlighted the urgent need to strike a more appropriate balance between the principle of non­interference, embodied in Article 2(7) of the UN Charter, and the protection of international human rights in order to prevent the commission of mass atrocity crimes.

Over the past 15 years, the Commission’s Report has been extremely influential on the international debate on humanitarian intervention.

It has revolutionised the concept of humanitarian intervention and how it should be perceived by the international community, by re­characterising it as an argument about a ‘responsibility to intervene’ based on the concept of sovereignty, as opposed to a ‘right to intervene’. The Report stated that under the doctrine of R2P, a sovereign state’s primary responsibility is to protect its own citizens from mass atrocity crimes. However, in the case that a state is unwilling or unable to exercise that responsibility to protect, it becomes the residual responsibility of the international community, acting primarily through the UN. This new approach suggests that collective action undertaken by the international community to protect nations at risk of humanitarian disaster does not constitute an assault on a state’s sovereignty as the international community is merely responding to its broad responsibility to protect embodied in the concept of national sovereignty.

R2P has effectively reconceptualised the principle of international humanitarian intervention and provided a new framework within which the international community can respond to gross and systematic violations of human rights.

The doctrine seeks to resolve the conflict between sovereignty and the need to prevent humanitarian 25

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

disaster by redefining sovereignty as responsibility.

The political developments with respect to the doctrine have focused on preventing humanitarian catastrophe and alleviating human suffering as opposed to recognising a ‘right’ of the international community to intervene. This shift in focus is what distinguishes this new framework of intervention from its humanitarian predecessor.

Since the international community’s formal acceptance of its ‘responsibility to protect’, the most significant development with respect to R2P has been its endorsement by the Security Council.

It was subsequently reaffirmed in two thematic UN Security Council (UNSC) resolutions on protecting civilians in armed conflict and a presidential statement on preventive diplomacy. However in practice, R2P has rarely been invoked since its conception. Furthermore, while broadly accepted as a political principle by the international community, R2P does not yet appear to have crystallized into a rule of customary international law.

Where R2P has been called upon, difficulties have arisen such as improper implementation and illegitimate practice.

Most notably, in 2011, the UNSC invoked the R2P doctrine under Resolution 1973 during the conflict in Libya. The Resolution, which represented the first military intervention under the doctrine of R2P, led to the removal of Qaddafi from power. However, critics maintain that

the Libyan intervention exceeded its mandate to protect civilians and used R2P as a cover for a regime change strategy.

Indeed, the Libya experience demonstrated the need to establish clear principles for a military intervention to ensure consistent application of R2P in the future.

Similarly, the contrasting responses of the UNSC to the political uprisings in Libya and Syria highlight the lack of consistent state practice of R2P. In the case of Syria, R2P has failed to stop 200,000 Syrians killed and millions more internally displaced or forced to seek refuge in neighbouring countries.

In these circumstances it is reasonable to question if the R2P doctrine, which has as its avowed objective the protection of humans from mass atrocities and other crimes, is subject to the strategic interests of the major powers. With the emergence of the ISIS threat and the consequent US­led coalition airstrikes in Syria, we are posed with troubling questions about the extent to which the US and its allies are now actively supporting a regime responsible for atrocity crimes against its own population.

It is probably too late to make a difference in Syria itself, where the only hope now appears to be a diplomatic solution brokered by the US and Russia. However, there is hope of getting the R2P project back on track for future hard cases.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS Rob Ranson

This year will mark the 62nd anniversary of the establishment of the European Convention on Human Rights and the 12th anniversary of its indirect incorporation into Irish law by virtue of the ECHR Act 2003. Thus, this represents an excellent time to consider the importance of the Convention and its relationship with Ireland.

When the Convention was created, it codified and enshrined fundamental rights at a supranational level in Europe for the first time. It also established a court based in Strasbourg to vindicate these rights against signatories who breached the Articles of the Convention. The impetus behind the creation of the Convention was a desire to prevent the atrocities

perpetrated in World War II from ever reoccurring.

As a living document, the Convention has adopted an increasingly broad scope over the years as it strives to reflect modern European standards, whilst still recognising states as having a margin of appreciation. Some have argued that this represents a move towards cultural relativism, which is problematic for a system of fundamental human rights. Nevertheless, it is generally for Ireland’s approach to issues of social policy that Ireland comes to the attention of the Court.

In the landmark Norris v Ireland decision of 1988, the Court ruled that Ireland’s criminalisation of certain homosexual acts breached Article 8 of 26

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

the Convention. This led to the repeal of all of the offending laws by 1993, and marked the birth of a more progressive Ireland. In later years, it has been our abortion laws which have come under the scrutiny of the Convention. The case of A, B and C v Ireland concerned three individuals who claimed that having to travel to England for an abortion breached their rights under Article 8 of the Convention. The Court held that Article 8 cannot be interpreted as conferring a right to an abortion.

Therefore, the claims of A & B were rejected, as each State enjoys a margin of appreciation to “defend public morals”. However, Ms C had been undergoing chemotherapy for cancer. She feared that a pregnancy could cause a relapse of her cancer and a danger to the foetus. The Court ruled that Ireland had violated the Convention by failing to provide an accessible and effective procedure by which a woman could establish whether she qualifies for a legal abortion under Irish law. This decision coupled with the tragic death of Savita Halappanavar, led to the passing of the Protection of Life During Pregnancy Bill in 2013, legislating for the X Case.

Later this year, the case of “the Hooded Men” will begin at the European Court of Human Rights in Strasbourg. This case has generated much media attention already given the addition to the legal team of a certain Amal Clooney (née Alamuddin), internationally acclaimed barrister and human rights activist.

The case concerns the treatment of 14 men while they were interned at a British Army Camp interrogation centre during the Troubles. The men were subjected to the infamous “five techniques” of wall­standing, hooding, subjection to white noise, deprivation of sleep, and deprivation of food and

drink. Amal Clooney and the rest of the legal team shall argue that this treatment amounted to torture under Article 3 of the European Convention on Human Rights, as opposed to merely “inhumane or degrading treatment”. However, disregarding the intricacies of the legal issues involved, the case is important on a more fundamental level. It is important as it focuses attention on the actions of a State during a period of what they perceive to be war or terrorism. The fundamental nature of these human rights means that they are absolute and as such, there is no scope for exceptions in times of conflict. In fact, it is in times of conflict, particularly state conflict, that these rights illustrate their significance.

The original case taken in the 1970s by the Irish government was the first time that one European state had brought another signatory to the Convention before the Court. The Court ruled that the techniques amounted to merely constituted inhumane and degrading treatment, but not torture.

This created a high legal threshold for torture in international human rights law, which the CIA used to justify its “enhanced interrogation programme”, using the five techniques in Iraq, Afghanistan and elsewhere. However, it has recently been alleged that the United Kingdom had withheld evidence from the Court in order to save itself the scandal of being found to have tortured its own citizens.

Investigations by the Pat Finucane Centre and NUI Galway led to an RTÉ documentary last year detailing the allegations. This led to the Irish Government asking the Court to revise its judgment and the case will be heard over the next few months.

The outcome of the case will be fascinating as Ireland may find itself once again at the forefront of ECHR jurisprudence.

LGBT RIGHTS Laureline Lemoine

The Law, a Protection Against Discrimination Lesbian, gay, bisexual and transgender (LGBT) people often face discrimination across all areas of social and economic life. They can also be subjected to verbal or physical violence due to their sexual orientation and identity.

Fortunately, certain protections for LGBT

rights have been provided for by European and International bodies and instruments. The international system of protection of LGBT rights is composed of bodies created within the United Nations (UN) and under international human rights treaties.

The instruments protecting these rights 27

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

include The UN Charter, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Although none of these provide explicit protection against discrimination based on sexual orientation or gender identity, they have provided non­exhaustive grounds, leaving space for possible interpretation and case­law on the matter. Its practical application can be seen in the 1994 case Toonen v. Australia, where the Human Rights Committee of the UN held that the reference to “sex” as a ground of discrimination should be taken to include sexual orientation.

In the European Union, the Treaty on the Functioning of the European Union (TFEU) aims in Articles 10 and 19 to combat discrimination on grounds of sexual orientation. The Charter of Fundamental Rights agreed in 2000 and legally binding since 2009 also asserts in article 21 that "any discrimination based on any ground such as ... sexual orientation shall be prohibited."

On the 27th November 2000, Council Directive 2000/78/EC was adopted with the aim of establishing a framework for equal treatment in employment and occupation, including a prohibition on discrimination based on sexual orientation. The way discrimination is defined and any exceptions to the law are purely a matter for each Member State. It also states that there is no justification available for direct discrimination, with only potential justification available for indirect discrimination.

This issue was raised in the recent Scottish case of Bull v Hall. After refusing a double­bed room to a same­ sex couple in a civil partnership, Christian hotel owners were found guilty of direct discrimination. The decision was appealed.

While the appellants argued that their policy was against all unmarried couples, including heterosexual couples, the fact that same­sex couples could not get married at the time reflected that any distinction between marriage and civil partnership was in effect to discriminate on the basis of sexual orientation. Therefore, the Supreme Court, by a 3:2 majority, found that direct

discrimination had taken place.

This position has been criticised, especially since the Parliament, in making marriage available for everyone, made a clear distinction between the two institutions. However, all the judges agreed that even if it had actually constituted indirect discrimination, their right to manifest their religious belief could not have justified their actions.

In July 2008, the European Commission proposed a directive (SEC/2008/2181) which implemented the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation. Consequently, it would ban discrimination based on sexual orientation in areas such as social protection, access to goods and services and education. The proposal is currently being discussed in the Council of the European Union. Despite the above developments, it is important to note that within the EU, Member States still retain a large margin of appreciation regarding human rights family law and are therefore not obliged to enable same­sex couples to marry or even to engage in civil partnerships.

Same­sex Marriage: the Trend of the 21st Century A referendum is scheduled in Ireland for May 2015 on same­sex marriage, allowing Irish citizens to decide whether they should join the 18 other countries in the world with freedom to marry for all.

This issue continues to be controversial but as the century moves forward, more and more countries are deciding that the time has come for marriage equality.

Even though the campaign for equal marital rights began in the 1970’s, the first country to recognise marriage equality, the Netherlands, only did so in 2001. Before that, governments had responded to the demand by creating new contracts for same­sex couples such as civil partnerships, which is the protection available today in Ireland. Many other countries quickly followed the Dutch example.

In addition to countries recognising marriage 28

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

equality, some countries such as the USA and Mexico recognise a regional freedom to marry where individual states are left to decide on their laws in relation to marriage. In 2004, Massachusetts became the first state in the United States to allow same­sex couples the freedom to marry. As of today, 36 states do so and more are to come as the Defence of Marriage Act was overturned, giving same­sex couples federal marital rights. Furthermore, countries such as Australia and Columbia are taking steps towards marriage equality. Many countries also have other forms of relationship recognition, either by giving broad protections stopping short of marriage or limited protection quite far removed from marriage.

Same­sex marriage is also a social issue intrinsically linked to religion. Religious opposition is often an obstacle standing in the way of equality, especially when such opposition is so vocal and loud. Of course, this doesn’t mean that the majority

of the population are against such measures.

Argentina is seen as a deeply Catholic country but still recognised same­sex marriage in 2010. Ireland is also seen as a religious country, but an Irish Times/Ipsos MRBI poll in March 2015 found that up to 74% of the population plan to support the introduction of same­sex marriage.

While the trend appears to be going in the right direction, it is important to remember that currently only 10% of the worldwide population live where there is freedom to marry for all. The 21st century has also witnessed a rise in violence and oppression of LGBT people in response to this global trend and campaign for same­sex marriage, especially in Africa and Eastern Europe.

At this point in time, one can only hope that in the 21st century freedom to marry will become available for more people and that the law will expand to offer greater protection for LGBT persons.

DIRECT PROVISION:

A REALITY WITHOUT RIGHTS FOR ASYLUM SEEKERS IN IRELAND Sorcha Cusack Statistically speaking, there are more asylum seekers than prisoners in Ireland and alarmingly, their living conditions are quite similar ­ fixed meal times, cramped rooms, little or no privacy – this is the reality of Direct Provision. Ireland is failing in our obligations to provide these people and their children with secure homes and a safe environment to live in. The UN Human Rights Committee expressed several concerns about Direct Provision, such as the delays in the processing of asylum claims, the prolonged accommodation of asylum­ seekers in Direct Provision centres, the lack of an accessible and independent complaints mechanism and finally, the treatment of victims of trafficking who are not granted a “recovery and reflection period” or temporary residence permission and are held in Direct Provision centres with inadequate legal support. Former Supreme Court judge, Catherine McGuinness, has predicted that a future government will end up publicly apologising for the damage done to those who are currently in the Direct Provision system as asylum­seekers are kept in a

Direct Provision is the system in place in Ireland to accommodate both asylum seekers claiming to be refugees in need of subsidiary protection as well as protection applicants who did not come within the strict legal criteria for subsidiary protection status, but who are now seeking leave to remain in the State. Direct Provision centres provide these applicants with the basic needs of food and shelter while their claims are being processed. As of April 10th 2015, this system will be 15 years old. By the end of last year, 4,275 asylum seekers (1,478 of which are children) resided in 34 accommodation centres spread across Ireland. It is only in exceptional circumstances that one will be granted surrogate state protection and as such, the system in Ireland is quite narrow and limited in granting asylum applications. The purpose of this article is to outline the extent of the Direct Provision system in place and to examine the barriers which prevent those within the protection status determination system from achieving the fulfilment of their civil, political, economic, social and cultural rights.

29

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

limbo of dependence without rights, without a voice and without dignity.

Asylum seekers are not allowed to work while their applications are being processed. They are not entitled to social welfare. They are excluded from social housing and have no right to education beyond secondary school level. Children who arrive in Ireland unaccompanied are kept in foster care until the age of 18, at which point they are removed and placed within the Direct Provision system.

The welfare system in Ireland, like in most countries, aims to provide its citizens with equality and support. However, when it comes to dealing with those who fall short of reaching citizen status, we see a distortion of the system in place. The welfare of those in the Irish State no longer seems core to its objectives and we see an emergence of a penal aspect to the system.

One proposed solution to the system of Direct Provision, put forward by the Irish Refugee Council’s pre­budget submission for 2014, is to grant asylum seekers the right to work after a year spent in Direct Provision. They also put forward the idea of granting rent allowance and a supplementary welfare allowance to means­tested asylum seekers pending the successful outcome of their cases. The IRC claims that Ireland would save over €8 million annually should this proposal be put in place. More important however, are the benefits that such a proposal would have on the asylum seekers and their children. They would be able to integrate, to upskill, to live in dignity and to gain control over their lives with the idea of one day becoming self­sufficient and independent of the welfare system.

Until such a proposal is accepted, the supports in place in this country for asylum seekers will continue to be a confusing and rather grey area of law. On closer examination of the system, the question arises of the constitutionality and overall legality of its implementation. In not clearly defining the law in Ireland in regard to the treatment of people living in Direct Provision, is the government acting outside of its powers? Since 2009, asylum seekers have been excluded from receiving supplementary welfare allowance. Yet, they receive €19.10 per adult and €9.60 per child per week from the Department of Social Protection.

In 2013, this question, among others, arose in the case of C.A and T.A (a minor) v Minister for Justice and Equality. This case involved a young mother from Uganda and her son challenging the Direct Provision system on the basis that it violated a wide range of human rights including the right to privacy, the right to work, the rights of children, the rights to a family life as well as a lack of access to social welfare rights.

Mr Justice Colm Mac Eochaidh delivered his decision in the High Court on Friday, 14 November 2014. He accepted that there had been some disproportionate interference with the rights of the applicants (room inspections, the ban on visitors, etc.), however, they were unable to succeed in the more substantial claims of their case – namely that Direct Provision subjected them to inhuman and degrading treatment and violated their right to a family life. Mac Eochaidh J accepted that this may be the reality suffered by those in Direct Provision, yet, there was insufficient oral evidence presented on these practices given to the court. In addition, he held that the applicants’ had no grounds for challenging the payment of the Direct Provision allowance and stated it was not a manipulation of the supplementary welfare allowance system and that the government was not acting outside of its powers. Finally, MacEochaidh J. accepted that such a system could be constitutional, and that there were no constitutional rights infringed by establishing

30

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

and running the system on the basis of ministerial circulars.

This case, among several others, was taken in the hopes of requiring the Department of Justice and the Department of Social Protection to bring forward legislative proposals around providing a sufficient statutory scheme for the provision of accommodation and financial allowances for those in Direct Provision. As well as this, there still remains a lack of clarity in the system of Direct Provision and several unanswered questions regarding the rights of children and the rights of

asylum seekers to work. However, progress is being achieved in the form of the creation of the Working Group to report to Government on improvements to the protection process, including Direct Provision and supports to asylum seekers. This Working Group has arisen from the Statement of Government Priorities 2014­2016 and it is primarily concerned with respecting the dignity and improving the quality of life of applicants for international protection while their applications for international protection in the State are under investigation.

MOBILITY RIGHTS IN THE EUROPEAN UNION Eithne Caulfield

new Member States and some non­EU states located in continental Europe had ratified the Schengen agreement. These voluntary agreements between the once completely sovereign 28 countries caused them to cede the governance of their border control to the rules of the EU, having a huge effect on their citizens. One now has the right to live, travel, study, work, and retire in any of the EU Member States.

Since its introduction in 1972, inter­railing has become a popular way to holiday between the EU Member States. The fact that you don’t need a visa, in addition to the free European Health Insurance cards has resulted in this becoming a very popular method of traveling when one wishes to visit a number of European counties and cities at one time.

In addition to travel, there are educational benefits that also stem from the right to mobility. A prime example of this is the Erasmus programmes run throughout European universities, including UCD, allowing students to experience another EU Member State’s education system and culture.

When it comes to working in another Member State, the EU have set up the EURES Network to make this process as straightforward as possible.

This network includes a system for recognising diplomas and training. It is a streamlined system and as such is much simpler than its complicated Australian and American counterparts. Furthermore, they have advisers to provide information on pay, taxes, contracts and recruitment practices as well as providing a database of job vacancies.

Due to a lack of opportunities in Ireland, the rate of emigration is now at more than 200 people per day leaving the country in search of work and better standards of living. People now emigrate to countries as far as Australia and New Zealand, thus showing that many Irish emigrants are overlooking the benefits of their European passports and the potential that comes from being an citizen not just of Ireland, but of the European Union.

With fewer than one in fifty Europeans living in a Member State other than that of their origin, it seems that our ability to freely move between Member States, arguably the most valuable benefit of Ireland’s membership in the European Union, is not being utilised. The unique combination of the Member States within the EU has resulted in new employment, travel and study opportunities that young emigrants, in particular, are seeking.

The EU has come a long way since the 1951 Treaty of Paris. Although Ireland joined the EU in 1973, free mobility has actually only been in place since 1995. In that year, the Schengen Agreement came into force. This agreement abolished internal borders and led to common rules on visas, resulting in free mobility within the EU. As well as this, in 1989, the falling of the Berlin Wall helped to create social, economic and political conditions that resulted in the expansion of the number of EU Member States. In addition, EU citizenship was introduced.

By 2007 all of the original Member States, the 31

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

The EU today is the result of a series of unprecedented historical factors. Its aim was once to ensure and protect peace among the states but these aims have developed and changed over time.

The population of the EU Member States combined is larger and more educated than that of the other superpowers. The unique development of the social, economic, political and legal features of the EU have led to what many academics believe to be an emerging culturally rich, distinctive superpower. We each play an intricate part in this and it is time that we reap the benefits of our EU mobility.

With the life­long learning schemes such as the Grundtvig Programme, Transversal Programme and Jean Monnet Programme in place, there are great opportunities available for EU citizens. These schemes mean that one can physically cross

borders without legal impediment, and what’s more, you are encouraged to do so. You must be treated without discrimination in line with the rights of any citizen of the country you’re attempting to find work in and you’re entitled to obtain any of the social security benefits of the that Member State until you find work.

Moving country is undoubtedly a huge decision. But with the funding and support now available, why not move to another EU Member State? Immerse yourself in the language you’ve always wanted to learn and spend some time living in another European country. Opportunities exist in the EU and as a citizen, they are ours to take advantage of.

32

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

FREE MOVEMENT AND THE INTRODUCTION OF SAME­SEX UNIONS IN THE EU Aodhán Mc Gourty Proposals to legalise same­sex marriage and civil partnerships are often hotly debated topics in many countries belonging to the EU. Currently ten member states recognise gay marriage, while twelve others recognise some form of civil union or unregistered cohabitation. This means same­sex couples receive anything from full legal recognition to nothing at all, depending on their Member State of residence. With an Irish referendum on gay marriage taking in place in May 2015, now is a good time to assess how the EU reconciles its legislation governing free movement with this diverse set of national legal systems.

interpretation should be given to the term.

If the host State does not recognise any form of same­sex union, or does not treat registered partnerships as equivalent to marriage, a same­sex couple will be treated according to the rules of unregistered partnerships. Under the Citizens’ Directive, Member States must “facilitate the entry and residence for… the partner with whom the Union citizen has a durable relationship”. The fact that all Member States must “facilitate” the entrance of these partners (even when they are non­EU citizens) means that entry cannot be categorically refused. Furthermore, because the Directive applies without discrimination on the basis of orientation, same and opposite sex partners must be admitted on the same basis.

Notably, the Directive only applies to EU citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who “accompany or join” them. As a consequence, a non­EU same­sex partner, of a citizen still living in their home Member State, cannot avail of the right under EU law to have their entry and residence facilitated. This leads to an inconsistency between EU migrants' rights and the rights of the citizens of Member States which do not recognise same­sex unions.

The Citizen’s Directive An individual, who wishes to move to an EU Member State, will often have the right to bring their spouse or civil partner with them. However same­sex couples do not always enjoy this right. This is because it is up to each Member State (and not the EU) to decide whether it will recognise same­sex marriages or partnerships.

For an individual married to a person of the same­sex and moving to a country which recognises same­sex marriage, the rules on the free movement of persons pose no problem. This is also true where a host State’s national law treats registered partnerships as equivalent to marriage. The Directive provides that an individual will have the right to join their partner as if they were a ‘spouse’ in these circumstances.

It could be argued that a same­sex spouse should automatically avail of entrance and residence rights, even when the host country does not recognises same­sex marriage. This is because the word ‘spouse’ in the Citizens’ Directive cannot be restricted to opposite­sex spouses, when read in accordance with art. 21 of the EU Charter of Fundamental Rights. This article prohibits discrimination on grounds of sexual orientation.

Ultimately, it will fall to the Court of Justice of the European Union (CJEU) to clarify what

Future Developments: The Mutual Recognition of Same­Sex Unions?

Mutual Recognition in this context entails that a legal union between two people of the same sex which is lawfully granted in one Member State should be recognised in any other Member State, even when that union does not comply with the national laws of the host Member State. Introducing the mutual recognition of same­sex unions would be more consistent with established EU law in other areas of EU law, and would ensure the ‘portability’ of one’s own civil status in any EU Member State.

In July 2010 the European Commission confirmed that mutual recognition of registered partnerships and same­sex marriages was within its 33

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

While the enthusiasm of the EU institutions on the issue of mutual recognition has been limited, the number of Member States recognizing some form of same­sex union has dramatically increased in the ten years since the Citizen’s Directive was enacted.

Introducing progressive changes such as the mutual recognition of same­sex unions may be the only way to address these developments and secure better protections for same­sex couples and greater European unity.

competency by citing non­recognition as a barrier to freedom of movement. In April 2014 the European Parliament issued a non­binding resolution to encourage legislative action, after criticizing the Commission for failing to act upon a previous pledge to propose new EU law protecting the free movement of all families. If legislative action in this area remains listless, there is a possibility that the mutual recognition of same­sex unions could be introduced by the CJEU. Introducing mutual recognition via the Courts could involve challenging the ‘constitutionality’ of the definitions adopted in the Directive by arguing that they conflict with the right to non­discrimination on grounds of sexual orientation which would be contrary to art. 21 of the EU Charter of Fundamental Rights. A specific challenge could be made against the fact that same­sex couples have to comply with the marriage or partnership laws of two Member States; the State of origin and the State of destination, posing an undue obstacle to their free movement. This situation, albeit acceptable under the Directive, could be deemed to be incompatible with EU principles established in the area of free movement of persons. However, these arguments are purely hypothetical and have yet to be tested.

Furthermore, same­sex unions remain a contentious issue in many eastern Member States.

The appropriateness of CJEU intervention in this area is therefore highly controversial.

34

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

SECTION 5: SCIENCE AND TECHNOLOGY IS INTERNET ACCESS NOW A HUMAN RIGHT? Clémence Coppin

Since the publication of the United Nations Human Rights Council Special Rapporteur’s report ‘On the promotion and protection of the right to freedom of opinion and expression’ on the 16th of May 2011, Internet access has been widely recognised as a human right.

In the current context, where legitimate online expression is criminalised by certain governments, often in contravention of States’ international human rights obligations, such a report was urgently needed.

As a concrete and somewhat ironic example of just how badly needed this declaration was, the same day that the UN report was published, an Internet­ monitoring firm detected that two thirds of Syria’s Internet access abruptly went dark, in what was claimed by many commentators to be a government response to unrest in that country.

Cutting off users from Internet access is now, at least according to the UN Human Rights Council, a disproportionate application of the allowed exceptions to Art. 19(3) of the International Covenant on Civil and Political Rights, which allow the curtailment of the right to freedom of expression ‘(a) For respect of the rights or reputations of others’ or ‘(b) For the protection of national security or of public order, or of public health or morals.’

In fact, as Special Rapporteur Frank La Rue mentions in his report, the bases for making access Internet access a human right are multiple. On the one hand, the Internet is an enabler and facilitator of the enjoyment of a wide range of related human rights, particularly through its facilitation of freedom

of expression and on the other, access to the Internet also plays an important role in increasing transparency and citizen participation in democratic societies. It ‘boosts economic, social and political development, and contributes to the progress of humankind as a whole’, and is therefore worth protecting.

Even China, infamous for its past human rights record and for its current censorship of certain sections of the Internet, came to support the subsequent UN General Assembly resolution on the right to access the Internet, though it stipulated that the “free flow of information on the Internet and the safe flow of information on the Internet are mutually dependent”. Chinese delegate Xia Jingge was therefore eager to clarify to the Human Rights Council that the country wasn’t about to tear down the so­called “Great Firewall of China” as a result of the report.

Though Internet access is now widely recognised as a human right, it is not always technically feasible in every nation, mostly because of the cost it represents. Therefore, it is more correct to say that access to the Internet should not be arbitrarily restricted if it is already available, which it is for 3 billion people across the world, than to say that there is a positive right of access to the Internet. However, it should be remembered that as a UN Declaration is merely ‘soft law’, there is no strong enforcement mechanism protecting this right, but it does represent an important step forward for law in the 21st century.

RIGHT TO PRIVACY Conor Gilheany

Privacy is afforded a double guaranteed by the Irish unenumerated right under provided for under Article

protection in Ireland, Constitution as an Article 40.3.1 and 8 of the European

Convention of Human Rights. However, in both cases it has been emphasised that the right is not absolute, meaning it can be overridden in certain circumstances. It has generally fallen to the Courts to 35

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

determine when the law will intervene to guarantee an individual’s right to privacy.

Constitutional Framework Initially, the Court in McGee v Ireland interpreted Article 40.3.1 as providing an unenumerated personal right to privacy in relation to married couples. Eleven years later, in the case of Norris v Attorney General, an expansion on this right to include privacy within homosexual relationships was sought, however the action was unsuccessful. However, Judge Henchy in his minority judgment emphasised privacy’s role in maintaining “the expression of an individual's personality”. It wasn’t until 1987 that the Supreme Court in Kennedy v Ireland, referencing the Norris case from three years previously, ruled that Article 40.3.1 encompassed a general right to privacy of the individual.

The protection afforded to privacy by the Constitution is capable of giving rise to a ‘constitutional tort’. This means a breach of the right can provide its own cause of action against an individual, organisation, or public body. To remedy this breach, damages may be awarded. In the case of Herrity v Associated Newspapers, for example, €60,000 was awarded to the plaintiff in compensation for the breach of her privacy, which was perpetrated by a newspaper, who published a story about her affair, quoted her private telephone communications (obtained illicitly), and published very intimate details about her life. The court may also award an injunction, which is a judicial order restraining a person from beginning or continuing an act threatening the legal right of another, or compelling a person to carry out a certain act.

sexual orientation was found to be a breach of the State’s responsibility to respect their private lives.

Similarly, in Modinos v Cyrpus the Court invalidated legislation banning homosexual acts, reasoning that such prohibition is a breach of the Article 8 responsibility to respect the applicant’s private life.

Privacy and the Media The battle between the media, who enjoy freedom of expression in reporting on events of public interest, and the individual who naturally prefers their right to privacy to be respected, is perhaps the greatest conflict surrounding the right to privacy today. The right to freedom of expression is expressly provided for by Article 40.6.1 of the Constitution and the Courts have been reluctant to allow it to be trumped by the right to privacy. In the case of M v Drury & Ors from 1994, the Court emphasised it would only be in “extreme cases [that] the right of privacy may demand the intervention of the courts”. More recently however, the Courts have been reluctant to allow a serious breach of privacy rights to go un­vindicated for the sake of purely trivial information. Thus in Herrity v Associated Newspapers, the High court in 2008 held

Article 8 of the European Convention of Human Rights Article 8 of the Convention provides a right guaranteeing respect for one's "private and family life, his home and his correspondence", only interfering "in accordance of law” and to the extent “necessary in a democratic society in the interests of national security.” Article 8 has been successfully relied on in the European Court of Human Rights a number of times for State breaches of individual privacy. In Smith & Grady v UK the discharge of members of the Royal Navy on the basis of their 36

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

the media’s right to publish matters in the public interest would not extend to exposing intimate details about an affair between a married parishioner and a priest.

Where the Court identifies a breach of privacy in a particular case, the media can generally justify this breach if they can show that there is a clear public interest being served in revealing the private information. In Cogley v RTE for example, the hidden­camera recording of the inner workings of a nursing home was deemed to be a breach of the property owner’s privacy rights, but was justified as the breach served an important function in informing the public about the mistreatment of patients.

The European Court of Human Rights has also dealt with privacy from the media, most notably in Von Hannover v Germany, in which photos of a German princess’s young daughter, among others, were deemed to have violated Article 8. The Court, in deciding whether a breach of privacy had occurred, laid down a test that has since been followed in Irish Courts. The test provides that the media’s freedom of expression may be curtailed by establishing whether or not the “photos and articles contribute to a debate of general interest”. Recently, in applying these principles a High Court injunction application was denied in Murray v Newsgroup Newspapers Ltd & Ors on the basis that the whereabouts of a sexual offender was in the public interest.

The Irish Press Council and the Office of the Press Ombudsman are the Irish statutory bodies that deal with complaints about the media across a wide range of issues, including when an individual feels their privacy rights have been breached. The complaint procedure is straightforward, free of charge, and allows the matter to be dealt with in a confidential and time efficient manner, without the need for costly litigation.

Data Protection The issue of data protection is one that raises privacy concerns, as the question of who can access personal information is often contentious. Irish Data Protection law is governed by the Data Protection Acts and overseen by the Data Protection Commissioner. It aims to guarantee respect for private information and protect against any abuse by individuals or bodies who hold information relating to an individual. Individuals or bodies found to be in breach of these rules by the Data Protection Commissioner may be forced to pay compensation to those whose data has been mismanaged or abused.

The Future of Privacy In both 2006 and 2012 attempts were made to introduce legislation governing privacy and to codify and refine the tort of breach of privacy, set out by the preceding case law. Both attempts failed because the Oireachtas was unable to agree on an appropriate balance between the conflicting interests of a free, investigative media and individual privacy. As it stands now, the majority of the law on privacy is judge­made. The introduction of a new statutory tort for privacy infringements could bring greater clarity to this area, and potentially afford the right even greater protection.

However, an over eager attempt to secure privacy rights could result in a less robust media, leading to less public scrutiny of those who ought to be inspected. Given the multiplicity of countervailing public or individual interests that arise in the context of privacy, designing legislation which strikes the right balance in every case is not an easy task.

Conor McCollum Although only recently coming to the fore, the basis for the ‘right to be forgotten’ has in fact been enshrined in Community Law since 1995. The 1995 Data Protection Directive compelled Member States

to rectify, erase, or block data containing incomplete or inaccurate information on a citizen, although omitted specific reference to a ‘right to be forgotten’.

In order to protect an ever increasingly 37

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

technological society, the European Commission felt it necessary to update this legislation. Due to come into force in late 2015, the 2012 draft Data Protection Directive aims to adapt to new technological challenges whilst maintaining the basic principles and objectives of the 1995 Directive. The 2012 Directive encompasses much more than just the right to be forgotten and is a complete modernisation of Europe’s data protection rules, establishing a number of new rights for citizens. The act strives to strengthen an individual’s control over their personal data and provide legal certainty.

The catalyst for the ongoing debate surrounding this issue was the Costeja case heard by the European Court of Justice in May 2014. Mario Costeja, a Spanish citizen, requested the re­moval of a Google link to a newspaper article detailing the foreclosure of his home for a debt that he had subsequently paid.

He objected to the article on the grounds that it was no longer relevant and wanted it removed on the basis that it implied he was bankrupt. The Court failed to explicitly address a ‘right to be forgotten’, instead relying on Costeja’s Article 7 (respect for private and fam­ily life) and 8 (protection of fundamental data) rights under the Charter of Fundamental Rights of the EU. So although not establishing an exclusive right to be forgotten, the case did establish that Google, a company based in America, is subject to EU law due to its significant business activity affecting community citizens. Most importantly, this case affirmed and expanded the Data Protec­tion Directives by stating that individuals have the right to ask search engines to remove links to websites containing personal information about them if that information is inaccurate, inadequate, irrelevant, or excessive. The Court went to pains to emphasis that this right is not absolute, but will always need to be balanced against other fundamental rights, most notably the freedom of expression.

inaccurate, inadequate, irrelevant or excessive. If Google, for example, declines to remove the link in question, then the citizen in question can make a complaint to their local Data Protection Authority, which is the Data Protection Commissioner in Ireland.

An important point to note is that the obligation imposed on the intermediary extends only as far as removing the link from their search engine. This means that the information will still remain on the original website, but it will be harder to find. Also, a citizen can only request ‘takedowns’ for information that arises when they type their name into the search box and nothing else. This leaves the title of the ‘right to be forgotten’ somewhat of a misnomer; given the relatively small impact of a successful complaint.

Issues The main issue arising from this debate is of course the age old balancing act between the right to privacy versus freedom of expression. Many feel that the right to be forgotten not only contradicts the ideology of a free flow of information, advanced by search engines like Google, but also acts as a form of online censorship. This view conflicts with those who feel that in an age of mass data sharing, there has never been a greater need for such measures to allow individuals more control over their personal information.

A potentially bigger issue flowing from this is that it will now be search engine companies who will decide on what side the balance should be tipped. Do we as a society feel comfortable with Google making these critical decisions on our behalf? An added caveat is that if Google fails to meet its obligations, the penalty for noncompliance is pecuniary, which creates a disincentive for Google to genuinely evaluate takedown requests and could plausibly lead to search engines simply removing links without proper consideration for fear of being fined. This means that important information about political scandals or corrupt clergy, for example, may well become much harder to find in future.

In terms of actually implementing this decision, the EU has reached a stumbling block. Many believe that the whole rule is essentially impossible

Practical Effect The practical implications of the case are that Google and several other compliant intermediaries such as Bing and Yahoo have now added a takedown request form on their websites. If a complaint is issued, the company in question must then use their discretion to decide whether the material in question is in fact 38

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

to implement. Google are only required to go as far as removing the information on a European basis.

This means that if the information is removed from one Member State’s domain it will be removed from all, but it will still be accessible internationally from anyone accessing a search engine from outside the EU, or using VPN software to mask where they are connecting from. Therefore, the rule is easily circumvented.

As stated in Article 3 of the draft 2012 Data Protection Directive, the right to be forgotten would be “an empty shell” if EU data protection rules were not to apply to non­European compa­nies and to search engines. However, this is a seemingly unattainable goal, given the rule is likely to clash with the high value placed on freedom of expression in many countries, most notably the US.

DATA PROTECTION LAW IN IRELAND Laura McDonnell

Introduction When personal information is given to an individual or organisation (eg. a bank, insurance company, or government body) they have a duty to keep those details private and secure. The storage of this information is regulated by data protection or information privacy laws. In Ireland, data protection is governed by the Data Protection Acts 1988 – 2003 (DPA). The DPA confer a number of rights and protections on individuals regarding their personal data, as well as regulating and placing obligations on those who collect or engage with it.

The authority responsible for overseeing data protection law in Ireland is the Office of the Data Protection Commissioner. Its function is to protect the public's fundamental right to privacy and to ensure that those who handle personal data do so in accordance with the DPA. This supervisory body has a number of wide ranging discretionary powers to enforce compliance with the DPA, including the right to carry out audits, request information from citizens it deems necessary, and the right to carry out its own investigation with a power of entry into the premises of Data Controllers.

'self­policing'. Current information privacy laws provide that one’s information cannot be disclosed for an unspecified or unlawful purpose. They also stipulate that legitimate processing conditions and adequate security requirements must be complied with.

An individual also has a number of 'proactive rights', as well as the above mentioned compliance rights. Firstly, a key right that Data Subjects have under the legislation relates to the right to be informed of the processing of their personal data.

This is essentially the ability to discover whether or not a certain individual or organisation holds any of their personal details or private information. Those making a claim are entitled to a description of the data and the purposes for which it has been kept, under s.3 of the DPA. Equally, Data Subjects have the right to access the above personal data (subject to a small number of exceptions) under s. 4 of the DPA. Under s. 4 the Data Subject must submit a notice request in writing to the Data Controller and must in turn be supplied with: the categories of data and personal data held, a description of the purposes for which it is held, and the recipients to whom the data may be disclosed (again subject to a small number of exceptions).

Under the current rules it is an offence for a Data Processor (a person who processes information on behalf a Data Controller) to disclose any personal information without the Data Controller’s prior consent. A Data Subject also has the right to prevent their data being processed for the purposes of direct marketing and a right against automated decisions;

Your Rights Given the value of personal information in this age of digital expansion, data protection and the safeguarding of individual privacy have become a far more contentious issue in society. Individuals, or 'Data Subjects', are given a number of specific rights under the DPA in Ireland, but the effectiveness of these rights is usually dependant on an individual's will to avail of them. Therefore, the DPA are largely 39

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

that is decisions that are solely computer based and function without human intervention. Under s.6 of the DPA, Data Subjects have a right to object to the processing of their personal data in a way that does not comply with data protection regulations, as well as the right to rectify, block, or erase any data relating to them. This can occur in situations where the data relating to an individual is inaccurate or has not been kept up to date.

Finally, if any Data Protection Application submitted by a Data Subject has been refused by a Data Controller, they are entitled to write to the office

of the DPC and make a complaint; however it must not be frivolous in nature. The DPC has the power to investigate claims of a possible breach of the DPA and organisations or individuals found to be in breach must uphold the Commissioner’s findings.

Given the fact that most breaches of the DPA are not considered 'offences', many organisations cannot be convicted by the courts. However, if damage has been incurred through a data breach, it may possible to pursue a compensation claim under s.7 of the DPA as an organisation holding your personal data owes you a legal duty of care.

CYBER­BULLYING AND THE LAW: IT'S COMPLICATED

Caoimhe Hickey & Eleanor Brookes Cyber­bullying: A New Phenomenon Rapid advances in technology and social media in recent years have created a new form of bullying, which has risen to prominence in our society. Cyber­ bullying is defined as repeated harassment or threats towards an individual, facilitated by online platforms (e.g. Facebook) and text messaging. It manifests itself directly and indirectly through the sending of offensive messages to the victim and/or posting unwanted images of the victim publicly.

Instances of cyber­bullying can become as severe and high profile as the pandemonium surrounding the infamous ‘Slane Girl’ and ‘KPMG Girl’ online sensations. In the ‘Slane Girl’ video, a 17­year­old Irish girl was shown performing acts of a sexual nature on multiple young men, with the recording then circulating the Internet. This story provoked unprecedented levels of ‘slut­shaming’ and gained huge public attention, even on an international level.

The response from audiences was divided, with many people believing she ‘deserved’ the abuse for allowing herself to be used in such public surroundings and others criticizing the focus of the abuse on the woman, with little attention being paid to the males involved.

However, not all cases of cyber­bullying make headlines. The problem is widespread in society.

Statistics reveal one in four girls and one in six boys will experience cyber­bullying in their teens. In a 2011 survey, conducted in 26 European countries,

Irish teenagers were found to be amongst the most likely to experience cyber­bullying.

Victims’ Options It is becoming increasingly common to document one’s daily activity and upload it to the Internet. As this information is available to the world at large, it is important to know how to protect oneself from cyber­bullying, as one’s own digital footprint may be used against themselves. Victims have the following options: Removal In milder cases, victims can contact the website on which the offensive matter is hosted and request a 'takedown' of the material. Evidence of breach of website terms & conditions or user guidelines must usually be provided in order for this takedown notice to be acted upon. Facebook for example offers this service. Merely “hurtful” material will not be removed, but must meet the standard of “harmful” before Facebook will intervene. The precise line is quite blurred.

Data Protection If one’s private information has been disclosed online, the Data Protection (Amendment) Act 2003 affords legislative protection, which offers remedies for the improper release of personal data by data 40

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

video, following the posting of explicit images by a bystander, no complaint was made to the Gardaí.

She could not avail of defamation laws or copyright laws, nor were any other legal remedies obviously applicable. As there was no legal basis to make a complaint, no one was made accountable for the pain she suffered. The lack of protection afforded to victims has two major ramifications: the perpetrators continue to bully others online and the victims never experience justice.

Fianna Fáil have proposed new legislation under the Cyber­bullying Bill 2013 in an attempt to tackle the issue. Under this legislation, parents who are aware that their children are engaging in cyber­ bullying and do not take appropriate action to stop it will have committed an offence. This would be a welcome development in the law, however it does not offer adequate protection for leaked images, particularly those of a sexual nature.

In the UK, proposed legislation will criminalise the circulation of “photographs or films which show people engaged in sexual activity, depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public.”

This legislation was prompted by a recent outcry in response to the fad of “revenge porn”, in which amateur pornography is circulated online by jilted ex­lovers.

As well as legal reform, there is a need for a change in social understanding about cyber­ bullying. Public reaction currently exhibits a tendency to blame the victim rather than those who distributed the offensive material. The law has frequently illustrated its ability to shape public opinion and could be helpful in this regard. The Road Traffic Act 2006 helped transform the public perception of drink driving to one of severe disdain.

It is possible that the proposed Cyber­Bullying Bill will have the same effect.

controllers, e.g. Facebook.

Injunction In more serious cases a court injunction can be sought to prohibit or remove the publication of information.

Defamation A civil action can be brought against a cyber­bully or hosting website for a defamatory statement. A statement can only be defamatory if it is false and damages the reputation of the victim; therefore a defamation action will not help for statements that are merely ‘hurtful’.

Assault In Ireland, Sections 2 and 5 of the Non­Fatal Offences Against the Person Act 1997 set out the offence of assault, which can capture cyber­bullying.

The crime of assault includes both actual harm and the threat of harm being perpetrated by one person upon another.

Copyright If images taken by the victim are then posted elsewhere by cyber­bullies, it is possible for the victim to order the material to be taken down. This is because a person has no right to upload something that is not his or her own intellectual property. This applies to photos, videos, statements, and more.

These however only catch a minority of cases, and do not provide effective redress for the alarmingly large proportion of the population suffering from cyber­ bullying. The deficiencies in current legal protections are illustrated by the lack of successful cases brought against abusers so far.

Why We Need Reform Cyber­bullying is a 21st century crime and the law has yet to catch up. None of the aforementioned legal remedies are tailor­made for cyber­bullying.

Consequently there are significant gaps in this area of the law and many victims are left with no medium for redress. Despite the global humiliation and abuse suffered by the teenage subject of the Slane Girl

41

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

ILLEGAL DOWNLOADING Conor Keegan

Since the turn of the 21st century illegal downloading has become a hotly contested topic. The growth of illegal downloading has been praised as a process by which artistic works have become more accessible to all, especially to those who may not have been able to afford to buy such works previously. However, illegal downloading has also been blamed for the decline of the music industry and for the development of a society where many believe they are entitled to artistic works for free, potentially leaving many artists without an income. While this issue has been legislated for in some countries, how governments have chosen to deal with illegal downloading is often controversial.

Governments have tried to respond to the large number of people downloading material illegally. For example, it is estimated that in 2013 8% of all Irish internet users were accessing the online file­sharing website ‘The Pirate Bay’ each month. In the UK, internet account holders who are believed to have been downloading illegal content will start to receive warning letters from their internet service providers (ISPs) from this year onwards as part of an industry agreement. Certainly, this seems like a bold move, which has been fully backed by the UK government on grounds of protection of jobs and economic growth. The UK policy proposes a “four strikes” method, where sanctions begin after the fourth warning letter is sent to a consumer. However, there is a lack of detail on what those sanctions might be or what other action the ISPs may take to deal with serial illegal downloaders. In short, the UK government are counting on those persons participating in illegal downloading coming to a sudden realisation that the consequences of their actions go far beyond simply getting content for free.

In Ireland more decisive, if controversial, steps have been taken. Here, the most high profile court cases involving illegal downloading have also involved The Pirate Bay. In 2009 a number of Ireland’s largest record labels took a case against the country’s largest ISP, seeking an order compelling Eircom to block access to The Pirate Bay by its customers. In a similar fashion to the UK, a “graduated response” (“three strikes”) method was

introduced in a settlement between the parties. This decision was largely seen as an alternative to the monitoring of content viewed and downloaded by Eircom’s customers, which had been demanded by the music labels in court and which Eircom had refused to undertake. However, under sustained pressure from the music labels Eircom blocked access to The Pirate Bay altogether in late 2009.

Eircom’s refusal to effectively spy on its customers highlights the fact that policing illegal downloading raises important questions, such as the extent of a right to internet privacy.

Following that decision, other ISPs who were not party to those proceedings continued to allow unrestricted access to The Pirate Bay. In 2012 the Government gave Irish courts powers to grant injunctions against ISPs in cases where copyright has been infringed. In 2013 this new legal provision was used when a number of music labels sought to prevent access to The Pirate Bay by customers of several of Eircom’s competitors . The music labels won the action, and between June and July 2013 access to The Pirate Bay was blocked by almost all ISPs in Ireland.

The 2012 secondary legislation faced huge opposition. A petition containing over 80,000 signatures against the statutory instrument was presented to the government in the weeks leading up to its proposed enactment. The legislation also drew unfavourable comparisons with the proposed Stop 42

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

Online Piracy Act (SOPA) in the United States, the passing of which has been postponed due to massive opposition from Google and other internet giants, many of whom staged a service blackout (either temporarily shutting down, or putting protest banners on their homepage) when the proposal became public. There were similar fears here that the Irish provisions would make Ireland less attractive to US technology companies and would represent a huge curtailment of digital rights. This shows that the issue of illegal downloading is about much more than songs or movies. Rather, it is about whether or not ISPs and governments have a right to know what people download, if there is a right to freely download, and whether limiting such a right is an infringement of basic rights, while also keeping the economy and people’s jobs and livelihoods in mind.

The above represents the law as it stands in Ireland. However, the fact remains that no one has yet been criminally prosecuted for illegal

downloading here. In any case, there is very little to stop those who have file sharing sites blocked by their ISP from accessing those sites through proxy servers. This leads one to question the effectiveness of legislating against illegal downloading at all. In France, for example the so­called “Creation and Internet Law”, which contained provisions allowing serial illegal downloaders to be cut off from their internet access for long periods was repealed in 2013, following realisation that such laws were ineffective and poorly enforced. Indeed, throughout the entire period that the law was in force only one person had their internet cut off, and only for fifteen days. Therefore, the way forward seems to be to punish the sites which make content illegally available as opposed to those who use that content.

A BEGINNER'S GUIDE TO BITCOIN Thomas Condon

Bitcoin is the most well known of several decentralised virtual currencies known collectively as cryptocurrencies. These currencies can be called 'decentralised' because they work on a 'peer to peer' basis, i.e. they have no central controlling or regulatory body and can be called 'virtual' be­cause they are entirely computer based, without any inherent value. The central idea behind Bitcoin is quite simple and is perhaps put best by Satoshi Nakamoto, who in a 2009 research paper first proposed "a purely peer­to­peer version of electronic cash".

A new Bitcoin is created by mining, which put simply means a computer is used by a miner to solve a complex mathematical equation. Once that is completed, the computer must add the answer to the global 'Blockchain'. Once added, the other computers in the network verify the new Bitcoin's existence, meaning that the Blockchain remains a completely accurate chronological record of all Bitcoin transactions. Therefore every time a Bitcoin is transferred from one person to another, it is recorded in the Blockchain. This instantaneous worldwide

verification is supposed to ensure the value and integrity of the currency.

The work put into mining creates a certain value, as the complexity of the equations are con­ stantly increasing and therefore availability of new Bitcoin is constantly decreasing, to the point that it is not profitable for someone with a general purpose computer to mine anymore. Once a coin is mined it is added to the miner's 'wallet', which is a unique alphanumeric code used for accessing one's Bitcoin.

These wallets can be physical, based on a computer, or exist online, but if they are lost or compromised, so are the coins the code refers to.

One might ask what the point of all of this is.

Essentially, this process means that there is no Federal Reserve, bank or government controlling the value of Bitcoin. It means that one can transfer any amount of cash across the world for negligible cost and it is an almost completely anonymous transaction for both the sender and receiver.

However, the future of Bitcoin becomes more complex and muddied when one looks at how it is 43

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

weaponry, and passport transactions through the Silkroad website.

The legal regime surrounding Bitcoin is still in its infancy, but the level of widespread acceptance of virtual currency in general is growing rapidly and will require at least a measure of international agreement on the matter, which is not yet present.

Currently both the U.S. Treasury and the European Central Bank classify Bitcoin as a convertible decentralised virtual currency, but it has been declared an investment commodity by the People's Bank of China and for US tax purposes. Bitcoin has not yet been classified as legal tender (i.e. currency that must be accepted as payment of a debt) in any country, including Ireland. Minister Noonan has previously mentioned in the Dáil that as Bitcoin possesses both commodity uses (for trading like stocks and shares) and currency uses, the tax treatment should depend on how it is used in each case, but this opinion is not binding without a new tax law dealing with the matter.

It is this writer's opinion that the next step in legitimising Bitcoin and improving upon some of its failings is to regulate the exchanges in some way and afford basic legal protections to the use of Bitcoin, which has at least the potential to be the first truly global currency, uncontrolled by the banking system and cheaper to avail of.

used around the world. For example, apart from its use as a currency or as an inexpensive means of sending money around the world, it has become widely recognised as a commodity that one can purchase and hold, much like an investor would on Wall Street with companies’ stock. It is in this respect that Bitcoin generates most of its headlines, like the US college student who paid for a pizza with BTC10,000 (worth $25 at the time of purchase), an amount of Bitcoin which became worth $6m in November 2013, or the Welshman who in error threw out a hard­drive containing his Bitcoin wallet holding BTC7500. Bitcoin has had a very poor 12 months, with each coin worth only $207.42 at the time of writing. In 2014, Bloomberg named Bitcoin its worst investment of the year, as it was the worst performing 'currency' aside from the Russian ruble. It is very difficult to guess the future usefulness of Bitcoin as a commodity and therefore remains a high­risk investment.

Concerns regarding price volatility remain a concern for those who use Bitcoin to purchase goods and services. Bitcoin also draws criticisms in this context because the nature of the technol­ogy makes it easier to maintain anonymity when transacting, than through a bank or money­handling service. This anonymity facilitates illegal trade and criminal activity. For example, allega­tions have been against Bitcoin that it was used to secure anonymous drug,

THE DEVELOPMENT AND FUTURE OF SPACE LAW Thomas Condon

On the 4th of October 1957, Sputnik, the first man­ made satellite, was launched into space and orbited the earth for 92 days. This signalled the start of a 'space race' between the USA and the USSR. More than this however, the launch of Sputnik made apparent the need to create and enact an international legal framework concerning outer space. This framework would ensure that neither superpower could claim total dominion of outer space, celestial bodies (planets, comets and other space materials), or begin using space as the ultimate strategic higher ground from which to launch a military attack on the other. Given the tensions between the two superpowers at the time, the latter was considered to

be a particularly dangerous risk.

Since then, five major space law treaties have been agreed, principal among those is the Outer Space Treaty 1967, which came into force ten years almost to the day after Sputnik's launch. Among the most important provisions of this treaty are the ban on the placement of nuclear weapons or other weapons of mass destruction in space, a limitation on the use of space to peaceful purposes, and a ban on States from claiming territorial rights over any part of the moon, space, or other celestial bodies (which is similar to the agreed upon non­territorial legal status of Antarctica).

The moon and other celestial bodies are 44

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

described by the treaty as 'the common heri­tage of mankind' and astronauts are idealised in the text as 'envoys of mankind'. This treaty has been the basis for much of the subsequent development of space law, ensuring from the earliest stages of human space exploration that cooperation and not competition would be the approach endorsed by the now 102 State parties to this treaty.

However, there are several grey areas in space law that have yet to be satisfactorily addressed. The examination of these issues is quickly becoming all the more important for the UN and its Office for Outer Space Affairs, particularly given the advent of space explo­ration financed and facilitated by private bodies. Currently, space law is addressed almost entirely to states through international law.

To date, there is no generally accepted legal definition of where space begins and air­space ends.

Any standardised kilometre distance from earth at which space law and not aviation (and national law) applies might not accurately reflect the actual distance at which space begins in certain areas around the world. The Von Kárman line theory on the other hand is quite useful and is used by the Fédération Aéronautique Internationale (FAI) to set the standard between the two legal regimes. The line exists at the point where aeronauti­cal lift can no longer be achieved. This line is usually around 100km from sea level and has been adopted as the boundary by several countries that have adopted national space legislation.

The Council of the European Union and the Legal Subcommittee of the UN Committee on the Peaceful Use of Outer Space have both recommended that states in which space activities are carried out should enact national space law which goes further than would be possible under international agreement and to set out insurance, authorisa­tion and environmental requirements that apply to private space­involved companies.

Since the Outer Space Treaty came into force, space has become commercialised particularly regarding satellite use in remote sensing, earth observation, telecommunications, and navigation (including GPS). One of the most important consequences of this in the near future is that states will have to do more to improve the protection of the environ­ment in space and to ensure that it is exploited in a fair and sustainable way. At present,

this is achieved to a certain degree through voluntary space debris minimisation. However, at a 7.9km/s minimum orbital speed, if one of the millions of pieces of small debris orbiting earth hits a satellite or a space shuttle it could be disastrous, if not on a scale comparable to the 2013 film ‘Gravity’. The legal status of this kind of damage is that fault must be at­tributed to another state if the accident occurs in space (this is obviously difficult, depend­ing on the size and type of debris in question). Yet, if space activity causes an accident to happen on the ground, then the state carrying out that activity bears responsibility for any and all damage caused, regardless of any fault on their part.

There has only been one recorded instance of money being paid by one state to an­other in compensation for damage caused by a space­based object reentering earth, known as the Kosmos 954 incident. In 1978 Russia paid $3m towards the cleanup costs following the crash of its nuclear powered satellite in northern Canada (although the total cleanup costs were closer to $6m).

It is important for the future exploitation of space that the humanitarian and peaceful objectives of the Outer Space Treaty are kept in mind and that more steps are taken to re­duce the impact of humans especially upon certain orbital paths, which have been called a "limited natural resource … [to be] used rationally, efficiently and economically". The Geo­stationary orbit (i.e. the orbit at which the satellite will in effect hang over a specific point on earth, about 38,000 km from sea level) is the most coveted space resource at present. It has already 45

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

mining and space tourism, both of which are being planned by governmental and pri­vate bodies and would be either legally problematic or impossible without new rules.

been the subject of the territorial claim by some equatorial countries, an ulti­mately unsuccessful bid because it contradicted the other, more widely popular, treaty mentioned above. In the future, more sophisticated rules are necessary to facilitate aster­oid

THE USE OF DNA EVIDENCE AND DATABASES IN IRELAND Erica Heslin

corroboration warning given against the infallibility of DNA evidence. The Law Reform Commission has suggested that a mandatory corroboration warning be given by the trial judge when dealing with DNA evidence, however no such warning has yet been imposed.

Problems arise with DNA evidence when it is challenged at trial, and such challenges can result in huge delays. An example of where this has happened previously is The People (DPP) v. Lawlor (1995), where the trial was delayed for weeks. The vital role that such evidence plays in criminal trials in the 21st century could be further improved by enhancing the current system of collection and analysis. The Law Reform Commission has also recommended that a pre­trial hearing be used in cases involving DNA evidence so as to avoid delays in the case of the evidence being challenged.

The Criminal Justice (Forensic Evidence) Act, 1990 states that the Gardai do not have the power to demand samples of DNA from a person unless (a) the circumstances are such that the person must comply under statute or (b), the individual in question has consented. The safeguards that exist for an individual giving a DNA sample under statute are not present for the individual who gives such evidence consensually, but this is to be remedied by new legislation.

DNA evidence is not the killer blow it is generally made out to be for criminal justice. Television series, such as CSI and Criminal Minds, have introduced our generation to the huge impact that both science and technology have had on 21st century criminal investigations. Particularly highlighted by these series is the use of DNA databases and their role in the world of law enforcement. But what is Ireland’s position regarding the use of DNA evidence in criminal investigations and its storage on a database?

Ireland’s Current System Currently Ireland deals with DNA evidence in an ad hoc manner, with no organised database. It’s worth noting that DNA is not used solely in criminal investigations. It can be used for other purposes such as child paternity testing or to identify and combat hereditary diseases.

Ireland makes use of ‘Short Tandem Repeats’ (STRs) in DNA profiling. Advances in science and technology mean that scientists can choose a particular pattern of DNA and see how often and where it appears in a person’s overall sequence. It is almost impossible for anyone, anywhere, to have the same DNA as another, but entirely possible for people to share STRs. The actual match probability depends on the particular pattern examined.

In introducing DNA evidence at trial, expert witnesses must be called in to give a ‘match probability’ opinion. They must tell the court how likely it is that someone in the same population might have the same STR as the accused. Currently it is not possible to be convicted in Ireland based on DNA evidence alone, but there is no doubt that DNA evidence is very persuasive circumstantial evidence.

Many have questioned whether it should be possible to convict a person on DNA evidence alone or whether there should perhaps be a mandatory

Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, while not yet enforced has been passed by the Dáil and represents a very significant development in Ireland’s criminal justice system. When established, it will be Ireland’s first 46

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

years or more (serious crimes) will have their DNA profiles stored on the database. However, if proceedings are not instituted against an accused within 12 months, their samples must be destroyed.

This is very different from our English counterparts who preserve all DNA samples for 100 years, whether or not a person has been convicted; before destroying them.

organised DNA collection database. Its establishment is long overdue, as Ireland was almost alone among EU member states in not having such an investigative tool.

The database will assist the Gardaí in the investigation of serious crimes and in identifying serial offenders across a broad range of offences, including rape and homicide. It will have an important role to play in the investigation of "cold cases", in exonerating the innocent, and will also assist in finding and identifying missing or unknown persons, as has been successfully implemented in other jurisdictions, such as the UK. The Forensic Science Laboratory of the Department of Justice, which has been processing DNA since the 1990s, will establish and operate the database.

There is an air of paranoia surrounding the database. There is the fear of the unknown – will my DNA sample be used for purposes that I am unaware of? With technology advancing at a rapid rate, there is the worry that one’s privacy can and will be invaded. A balance has to be struck between the public interest in robust investigation of crime and the individual right to fair procedure, privacy, and good name; it remains to be seen if this will be the case.

It is proposed that only those who have been convicted of a crime that imposes a sentence of 5

The Future In other countries DNA databases have greatly contributed to criminal investigations where crime scenes have produced viable forensic material. For example, the UK’s National DNA Database had a ‘match or hit’ rate of 61% in 2012­2013. While a ‘hit’ simply place a person at the crime scene and will not necessarily be followed by a prosecution, such a high rate does point to the effectivness of the technology. The rate is partly dependent on the size of the database and will increase as more DNA material is added to it, improving its future efficiency.

For now we must wait and see how this new legislation will work in practice, but there is no doubt that it will result in a huge leap forward for the use of DNA evidence in Irish criminal law enforcement.

ANIMAL TESTING IN SCIENTIFIC RESEARCH Genevieve Brindley

Introduction: The practice of using animals in cosmetic testing and biomedical research is a highly controversial area and proponents have come under severe criticism from animal protection and animal rights groups. Animal research is generally used to describe research involving vertebrates, such as cats, mice, frogs, pigs, and primates, with most animals being specifically bred for use in research. Clinical research, which involves conducting studies with humans, almost always requires results of preliminary tests from animal based research. Those against animal testing contend that the benefit to humans does not justify the harm to animals and many also question whether the results can even be applied to humans. Those in

favour of animal testing argue that experiments on animals are necessary to advance medical and biological knowledge. They argue that results from animal studies are crucial for closing knowledge gaps concerning health and disease in both humans and animals.

The use of animals in scientific research has undeniably resulted in many medical breakthroughs and this can be used to justify its continued practice, in order to reduce human suffering and to save human lives. The development of the polio vaccine for example involved the use of monkey animal virus models, while pigs have been used in the development of skin grafts for burn victims and in CAT scans. There have also been tragic incidents 47

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

for the implementation of the legislation. Directive 2010/63/EU on the protection of animals for scientific purposes, and its amendments, established measures for the protection of animals used for scientific purposes. The Directive anchors firmly the principles of the ‘Three Rs’; to replace, to reduce, and to refine. By employing the ‘Three Rs’, the scientific community can confirm its moral conscience while upholding its obligation to humanity to further the advancement of scientific progress. where harm to humans has resulted from the use of substances that have not been tested on animals first.

An example is the Thalidomide drug which was thought to be a ‘wonder drug’ for treating insomnia, coughs, colds, headaches and morning sickness; consequently, more than 10,000 children in 46 countries were born with malformations or missing limbs.

The Three Rs 1. Replacement: Animal use must only be permitted where justified and where the expected benefits outweigh the potential adverse effects. Replacement methods are used when the aims and goals of the experimentation can be reached without the use of animals, and can involve the use of computer models or other methods in research.

Ethical Issues The nature of animal testing raises many ethical issues. One key argument against animal testing surrounds the inability of animals to consent to the tests. It is argued that humans can make an informed decision to consent to testing, while animals have tests forced upon them. Another major ethical issue with animal testing is that it involves pain, suffering and discomfort being suffered by the animals. Where possible researchers minimise an animal’s level of pain and suffering by using anaesthetics, but for some types of testing using a pain reliever can interfere with the drug being tested. In these circumstances animals must experience the sometimes painful effects of tested drug, which can present an unfortunate ethical challenge for researchers.

The use of animals for cosmetic testing is a much more controversial ethical question. The aesthetic, non­scientific value of such research is a divisive issue and many individuals support animal testing for medical purposes, but not cosmetics.

2. Reduction: Aims to minimise the numbers of animals used in each research project. Reduction measures are important as they allow researchers performing animal testing to gain a similar or equivalent amount and level of information by using smaller number of animals.

3. Refinement: refers to the need for measures to be applied to enable scientific procedures to be carried out in the most humane manner possible and to minimise pain, suffering, distress, and lasting harm suffered by animals. Refinement methods are controversial as they only involve minimising animal suffering but do not actually reduce the number of animals used. Those in opposition to animal testing often believe that animals should never be used and that minimal suffering is still unacceptable. For those who conduct animal testing and those who support the use of animals in research, refinement techniques are vital for promoting the well­being of animals and safeguarding their welfare, while still satisfying the aims of scientific knowledge and research.

Legislation on the use of Animals in Scientific Research The protection and welfare of animals is an area covered by EU legislation. In Ireland, the Health Products Regulatory Authority (HPRA) is responsible

Regarding the use of animals in cosmetic testing, the European Commission’s Cosmetics Regulation established a prohibition on testing finished 48

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

products and cosmetic ingredients on animals and a prohibition on marketing finished cosmetic products and ingredients included in cosmetic products which were tested on animals in the EU.

aims to effectively balance the importance of scientific and medical advancement and the welfare of animals involved in research. It also has the added value of placing a burden on researchers to provide convincing evidence for the necessity of using animals. While animal rights activists continue to call for stricter legislation, such intervention ensures animal rights do not go entirely ignored in the mission to develop better and safer drugs and products.

Conclusion The use of animals in scientific research remains in widespread use and continues to play a vital role, particularly in biomedical research. The legislation, in particular the ‘Three Rs’ principle adopted by the EU,

THE LAW OF STEM CELL RESEARCH Óisín O'Callaghan

term ‘unborn’ as well as the point at which an embryo would become legally protected after fertilisation. The Irish Council of Bioethics (ICB) was set up in 2002 to advise the State on human scientific issues but it ceased operation in 2010 following financial cutbacks. In 2008, the ICB fortified calls from the CAHR to establish a commission to regulate assisted human reproduction as well as embryo research. At this juncture, the Irish Government pledged to introduce legislation to address these concerns. However, this pledge was immediately followed by the simultaneous onset of a financial and political crisis. Legislative action in this area quickly fell down its list of priorities.

Overview The subject of stem cell research has proven to be a well debated bone of contention internationally and continues to divide public opinion in many States.

Several countries worldwide, including Sweden, Finland, Belgium, Greece, Britain, Denmark, and the Netherlands have opted for liberal legislation authorising the use of embryonic stem cells for scientific purposes. This research is typically conditional on ethical approval, subject to regulations, and overseen by a national authority.

Conversely, countries such as Germany, Austria, Ireland, Italy, and Portugal have forbidden embryonic stem cell research and cloning, but permit other types. Across the Atlantic, the divergence in approaches is perhaps even more striking. While several U.S. States impose a complete ban on research, others actually fund it. As the commercial viability of the industry develops, a number of governments are reconsidering their positions on the matter or are in the process of introducing relevant legislation.

EU Position As of March 2008, 34 Member States of the Council of Europe have signed, and 21 have ratified the European Convention on Human Rights and Biomedicine. This sets out fundamental policies applicable to new technologies in human biology and medicine. Ireland is not a signatory to the Convention, as there are difficulties with a number of articles that have implications for the destruction of human embryos. These do not correlate with the Irish Constitution or with the legal precedent that has been held in Ireland thus far. Notably, the European Union allows public money to be used to fund stem cell research in European countries where there are defined legal parameters for its operation.

Although there has been extensive European case law in this area, no guidance as to the status of the embryo in Ireland can be deducted from it. The

History in Ireland The Committee on Assisted Human Reproduction (CAHR) was established in 2000 by the then Minister for Health. In 2005 it released a report detailing that embryos in vitro (living in a test tube) would not be constitutionally protected until they were placed in a human body and that research would only be permissible on embryos that otherwise would be discarded. Supreme Court decisions were not consistent and the CAHR called for clarity on the 49

UCD STUDENT LEGAL SERVICE

LAW IN THE 21ST CENTURY

Supreme Court in the case of MR v TR (November 2014) ruled that the genetic mother of twins born to a surrogate could not be recorded as the children's mother on their birth certificates and fortified the calls for legislation in this area.

In early 2015, after many years of waiting, the government is developing the Bill for Assisted Human Reproduction and Stem Cell Research which aims to regulate this area for the first time. This proposed Bill, which Department of Health officials have been drafting over the past year, will set out proposals to regulate or limit practices in the areas of surrogacy, embryo donation, sperm and egg donation as well as areas of associated embryonic research in accordance with recent Supreme Court decisions.

European Court of Human Rights has implied that there must be respect for the foetus, but it is unclear whether this would extend to the embryo in vitro (within a living organism). Due to the lack of compatible legislation in Ireland, it is unlikely that the Irish government would sign or ratify the Biomedicine Convention any time soon.

Current Irish Situation Medical science has surpassed legal development for many years but there has been a noticeable failure on the part of the Irish government to address this gap by way of legislation or regulation.

Research institutions have been more proactive in this regard. Universities including University College Cork and Trinity College Dublin have developed their own “in­house” guidelines, which permit the use of human embryonic stem cells with due regard to ethical guidelines. The Medical Council has also been eager to steer their members in the right direction by releasing practice guidelines in the area. Importantly, the guidelines are not binding on scientists and investigators alike. Therefore, it is not illegal for researchers to import or use embryonic stem cells but the Department of Health has placed a ban on using public funding in this area. Realistically, no prudent private investor would dare to speculate with large amounts of money in an area impaired with a regulatory vacuum which lacks adequate legislative controls.

In 2010 case of Roche v Roche, the Supreme Court had to consider the question of when life began.

The case arose out of an appeal by a wife, against the High Court’s refusal to order a Dublin Clinic to release three frozen embryos to her with a view to becoming pregnant against the wishes of her estranged husband. The court ultimately decided that the embryo in vitro did not fall under Article 40.3.3 of the Constitution and she had no right to the eggs. The Court also stressed that this did not mean that embryos should not be treated with respect as entities having the potential to become a life in being. The Court did not discuss what degree of protection should be afforded, holding that this was a question for the legislature to decide. By extrapolation, embryonic stem cell research is not illegal in Ireland as the law currently stands. However, the government may easily intervene and halt this technicality. Most recently, the

Conclusion While the first stem cell research laboratory opened in early 2014 in NUI Galway, Ireland’s legislative framework lags well behind. The absence of open and transparent stem cell legislation is costing Ireland valuable research, investment and employment opportunities as scientists are unable to work effectively in an environment where there is no regulatory framework and wavering public confidence. It remains unclear whether the recently announced legislation will comprehensively cover all neglected areas of the law or even if it will be enacted within the lifetime of the current Government. Meanwhile, one can only hope for the introduction of thorough and effective legislation in a timely manner. This could complement our recovering economy and resolve many of the legal and ethical difficulties in this area.

50