Public Interest Law in Ireland

PUBLIC INTEREST LAW in ireland

A Note from the Editors “Elementary justice demands...that the rules by which the citizen is to be bound should be ascertainable to him by reference to identifiable sources that are publicly available�

- Lord Diplock For many of us the law is a distant, complicated and often abstract creature, grounded more in the technicalities of legal drafting or theory than in the reality of our everyday lives. Over the last 10 years the UCD Student Legal Service has aimed to clarify areas of the law most relevant to students with a view to making it more accessible, understandable and transparent. With this, our 10th anniversary publication, we aim to engage students on a broader level, not merely as consumers, tenants or employees, but as citizens too.

It is our firm belief that is it is essential for any modern Republic that those who are subject to its laws are in a position to comprehend and question their development. Many areas of Irish Public Law have undergone tremendous change in recent years, in some cases changing beyond recognition (such as LGBT rights) and in others growing from almost nothing to become a large part of our contemporary jurisprudence (such as environmental or family law). These changes have been revolutionary and transformative and as such deserve careful consideration by an informed public. To this end, the Student Legal Service and its publication contributors have identified, selected and assessed key issues in Irish life which have strong legal dimensions with a view to de-mystifying the law so that UCD students and the wider community can engage with the substance of the debates which form a core part of our legal and national heritage.

Hugh

McGowan & Thomas Kelly, UCD Student Legal Service, 17th of April 2016

About our Sponsor Brophy Solicitors is a leading rights based law firm specialising in legal advice and assistance for individuals and small businesses.

We aim to protect our clients and their environment through creative litigation and innovative work.

We will hold to account those who abuse power – whether that is the power of an abusive spouse or an abusive employer or an abusive government or local authority. We will challenge government corruption and individual wrong doing. We have acted in many cases in which we have achieved landmark decisions in relation to immigration, miscarriages of justice and in achieving excellent settlements for individuals and companies who have suffered losses as a result of the actions of public bodies.

Brophy Solicitors act in a wide variety of cases, from Human Rights and Immigration to Family Law, Medical Negligence, Employment Law and Defamation.

Acknowledgements Editors-in-chief:

Thomas Kelly and Hugh McGowan.

Sub-editors:

Helen Carroll, Tara Casey, Heather Flood, Clare McKeon, Andrew McKeown, Kate Moloney, Kyle Rapp, Roryann Sweeney and Ellis Witcher.

Committee:

Patrick Cowhey, Hannah Cowley, Roisin Culligan, Fintan Doherty, Ciara Dunne,

Roisin Finn, Conor Keegan, Thomas Kelly, Simon Keogh, Robert Lee, Hugh

McGowan, Kate Moloney, John Brooks Murphy, Ellen O’Duffy, Dearbhla O’Sullivan, Lucy Ryan.

Contributors:

Ashley Braham, Helen Carroll, Tara Casey, Hermine de Cevins, Boun

Chun, Danielle Clarke, Hannah Cowley, Joanna Crowley, Fintan Doherty, Heather

Flood, Emma Foley, Rachel Gaffney, Conor Gilheany, Anne Guerin, Jasmine Hett,

Danielle Higgins, Conor Keegan, Eve Kennedy, Hazel Kerrigan, Robert Lee,

Jessica McCarthy, Laura McDonnell, Clare McKeon, Lilia Meunier-Mili, Ashley

Minogue, John Brooks Murphy, Sarah Murphy, David Murray, Emma Ní

Arrachtáin, Mark O’Brien O’Reilly, Anthony O’Shea, Lucy Ryan, Roryann Sweeney, Victoria Sweetnam.

Graphic Design:

Emily Russ

Sponsors:

Brophy Solicitors

Special Thanks:

The Editors wish to gratefully acknowledge the academic staff of the UCD Sutherland School of Law for their kind assistance in peer reviewing this publication and for their support of the UCD Student Legal Service over the years. We wish to extend our profound thanks to the Honourable Mr. Justice Garrett Sheehan of the Court of Appeal for graciously providing a foreword and for his stalwart commitment to the UCD Student Legal Service. Our sincere thanks go to Brophy Solicitors for their generous sponsorship, without which this publication would not have been possible. In particular, we wish to acknowledge Kevin Brophy for his tireless work in support of the cause of justice and human rights in Ireland.

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 herby 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 lawyerclient 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, 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 such information.

Contents Foreword..................................................................................................................................................................................... 1 Introduction.............................................................................................................................................................................. 2 Abortion Law in Ireland......................................................................................................................................................3 Access to Justice: Legal Costs and Human Rights...............................................................................................4 Assisted Suicide......................................................................................................................................................................5 Bitcoin: Inventing a Currency...........................................................................................................................................6 Challenging a Referendums.............................................................................................................................................. 7 Church & State: Religious Discrimination in Schools ..........................................................................................8 Consumer Rights in a Digital World........................................................................................................................... 10 Controlling Crime vs. Protecting Your Rights: The DPP v JC Debate..........................................................11 Court Wardship Explained............................................................................................................................................... 13 Current Issues in Irish Asylum Law.............................................................................................................................. 14 Ensuring Equality: The Equal Status Act...................................................................................................................15 From Criminality to Equality: Same-­sex Marriage................................................................................................17 Homelessness: A Right to Housing?........................................................................................................................... 18 International Investment Arbitration.........................................................................................................................20 Irish Travellers: An Ethnic Minority?...........................................................................................................................20 Politicians, Posters and Polling: The Law Surrounding Elections to Dáil Éireann.................................21 Protecting Children: The Requirement to Report Abuse................................................................................ 23 Protecting Your Data: The EU and You.................................................................................................................... 24 Religious Ethos: is it an Employee Obligation?.....................................................................................................27 Surrogacy in Ireland........................................................................................................................................................... 28 The Accidental Legalisation of Drugs.......................................................................................................................30 The Law of Defamation..................................................................................................................................................... 31 The Law on Prostitution.................................................................................................................................................. 32 The Law Surrounding Domestic Violence............................................................................................................... 33 The Regulation of Charities............................................................................................................................................ 34 The Right to Bail Explained............................................................................................................................................ 35 The Right to be Forgotten.............................................................................................................................................. 37

Foreword The continuing health of Irish democracy is not a given. Its development requires that considerably more people participate in public life. Towards the end of her term of office in 2011, President McAleese addressed this important matter at a function in the Law Society when she spoke of the need for people to be financially and legally literate if they were to engage with the issues of the day in a meaningful way.

The one group to respond to this call for legal literacy is the UCD Student Legal Service. While its original publications were primarily addressed to students they can be read and easily understood by those who have no legal training. Equally the Civic Guide to the Constitution, published in 2013, makes a significant contribution to Irish legal literature. The present publication which marks the 10th Anniversary of the Student Legal Service continues this critical work by focusing on a number of contemporary legal issues.

The Student Legal Service has provided the resource for those who wish to be legally literate. The task now is to ensure that this resource is properly communicated to a wider public. A final thought, could UCD business students be persuaded to follow the example of the Student Legal Service and assist all of us in becoming financially literate?

Garrett Sheehan, Court of Appeal, 8th April, 2016

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Introduction When I first decided to study law, I was driven by a somewhat dreamy idealism brought on to some extent by over exposure to American TV crime programmes.

As time went by and I took up law as a career, I came to see the legal system as an absolutely critical part of any effective, working democracy. Lawyers and the legal system come in for a lot of criticism, and in some cases rightly so, but the underlying need for an effective, working legal system remains essential to any civilised society.

Fairness, equality, protection and above all, the rule of law, are central to our civilisation.

I still love my American lawyer programmes but now I know how unbalanced and unrealistic they are.

One thing, however, remains the same. We need an effective legal system but as well as that, we need lawyers who are still driven by the desire to change aspects of society and protect and enforce rights.

The legal world is increasingly complex, segmented and specialised. A law student, who might not know what specific area they may wish to work in, can hopefully have their interest sparked and their passions ignited by some of the articles in this Review. For the rest of us, the articles will provide interesting and stimulating information on a whole range of legal topics.

We need law students who are driven, idealistic and passionate to take up careers in law and to do their very best to retain their passion and enthusiasm and desire to protect and represent their clients and at times, act to change the society we live in. I have been hugely impressed by the work of the UCD Student Legal Service and I feel enormously honoured and privileged to be asked to provide this Introduction.

Kevin Brophy

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Abortion Law in Ireland Emma Foley

Abortion is illegal in Ireland in all situations except when it is deemed necessary to save the life of the mother. This distinction seems straightforward and clear cut at first view, but the law is, in reality, much more complex. Following the 1983 referendum, the Eighth Amendment inserted Article 40.3.3 into the Irish Constitution which affirms that; “the state acknowledges the right to life of the unborn and, with due regards 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.”

Abortion is a very controversial issue in Ireland.

As stated by the Supreme Court in Murphy v.

IRTC even when abortion is not at the root of a political election or public debate, it is always going to be a controversial topic in Ireland. And while it is at the forefront of debate, it is subject to a slow development in the law.

The constitutional right to life of the unborn is to be balanced with, and read in light of, the right to life of the mother who may need an abortion.

This issue came to a head in 1992 in the infamous X case. This is a seminal decision of the Irish Supreme Court that concerned the pregnancy of a fourteen year old girl as a result of rape. The girl’s family wished to travel to Britain to obtain an abortion but before doing so contacted the Gardaí asking whether they should keep some of the foetus’ DNA for evidence testing. This prompted the Attorney General to seek an injunction preventing X from getting an abortion. The case came to the Supreme Court, where the question was whether Article 40.3.3 allowed X to travel to get abortion or if she was entitled to a termination in Ireland.

In weighing up the right to life of the unborn against the right to life of the mother the Supreme Court decided that a woman had a right to an abortion if there was a “real and substantial risk to her life” and this risk included suicide. It was thus established in 1992 that a termination could be sought within the state in order to save the life of the mother. The child’s life was contingent on the mother’s and therefore the life of the mother would have to outweigh the child’s in certain situations. This position was strengthened by the European Court of Human Rights decision in A, B and C v Ireland. However, the European Court also found that the government was failing in its duties in establishing a clear procedure as to whether a woman satisfied the conditions of abortion.

While the X case was decided in 1992 it was not until 2013 that legislative intervention was taken in tragic circumstances following the death of Savita 3

Halappanavar. In the interim period between 1992 and the introduction of the Protection of Life Act, 2013 there were attempts made through referenda to rule out suicide as a ground for an abortion. The electorate voted to uphold the law as it stood, and to allow abortion to save the life of a suicidal mother.

Following growing public pressure after the death of Ms Halappanavar, the government decided to pursue a route of legislation and regulations to enact the 1992 and European Court decisions.

The Protection of Life Act, 2013 came into force on 1st January 2014 and sets out three situations and the conditions in which abortion is allowed in Ireland: 1. Risk to life from physical illness: Two physicians will examine the woman and determine a course of action. One of which must be an obstetrician and the other a specialist in the area of illness.

2. Risk to life from physical illness in emergency cases: In emergency situations a single physician can make the decision.

3. Risk to life from suicide: A panel of three physicians (two of whom are psychiatrists) will examine the woman and determine whether there is a risk to a woman’s life which can only be saved by a termination of pregnancy.

This review must be done in a timely manner and a woman has the right to challenge a decision to the HSE under the Act. The Act was received with mixed reactions.

Pro-Life campaigners argued that it was a dangerously flawed piece of legislation while prochoice advocates stated that it “amplified flaws” rather than solve them. Concerns for the Act’s range was called into question in September 2014 with the Miss Y case. Miss Y, having been raped, discovered she was pregnant upon entering Ireland and sought an abortion on the grounds of suicide. The baby was ultimately delivered by Caesarean section at twenty-five weeks, as no doctor would perform an abortion at that stage.

This case highlights the issue of implementing the acts and the lack of coordination in hospitals on the issue of whether an abortion should be performed or not.

The enactment does not change the status of the right to information or the right to travel abroad for an abortion. Nor does it change the law in relation to the health of the mother as opposed to the life as governed by the Supreme Court decision in the “Miss D” case. Currently the position of the aforementioned is governed by the Regulation of Information (Service outside the State for Termination of Pregnancies)

Act, 1995 and constitutional provisions under 40.3.3. There is a right to information on legal abortion outside the state and a right to travel to terminate a pregnancy, which cannot be interfered with by the state.

As we transition from a largely case law and strict constitutionally dominated approach to abortion law to a legislative approach we can still note physicians’ trepidations about what the law really is. This is evidenced in the PP v HSE case where a woman who was declared brain dead was kept on life support to keep her fourteen week old foetus alive against her family wishes. The right to life of the unborn can in cases like this makes one think: when do we have to vindicate the right to bodily integrity of the mother?

While the Repeal the Eighth campaign is currently at the forefront of the debate, the future of abortion in Ireland is uncertain. It would seem that the current government have decided that they have satisfied the need to address the issue through the implementation of the 2013 Act, despite the reservations against it. The 2015 report on the legislation revealed that in 2014, 26 abortions were performed under the legislation; three of which were due to a risk of suicide. If a future government were to call a referendum to consolidate the law it would undoubtedly be a vastly debated vote. Abortion is a most contentious issue and, because of the utterly antithetical views held by opposing side, will always lead to a “dirty and divisive” debate.

Access to Justice: Legal Costs and Human Rights Sarah Murphy

In recent months, there has been much discussion in the media about the rising legal costs in this country. According to a report carried out by the Medical Protection Society (UK), legal costs in Ireland are among the highest in the western world. This fact presents many problems to the modern Irish justice system, the main one being that access to justice is not as equal and pervasive as it should be. This article will describe how a person, who wishes to access the Irish legal aid system, does so. It will also examine some of the challenges that the system still faces.

So, just how much money does it cost to get legal advice or take a legal action in Ireland? The costs incurred depend on the type of action in question; its complexity and the hours of work required. If a case requires litigation a barrister needs to be consulted which increases costs significantly. What can be done when one simply cannot afford these fees? The first thing to do is to contact the Legal Aid Board to see if you qualify for legal aid.

Criminal legal aid will be provided (free of charge) if the judge deems it appropriate. If the judge allows, a legal aid certificate will be issued and a solicitor will be assigned. If the judge does not allow, an application can be made for some ad-hoc additional schemes. The judge will likely grant a legal aid certificate if the offence is a serious one and is attached to a significant fine or prison sentence.

Civil legal aid is provided by the Legal Aid Board and it is not free. Depending on a person’s means, an initial contribution of between ¤30 and ¤100

is required and a further minimum payment of ¤100 is required if the case goes to court. If the payment would cause undue hardship an application can be made to have it waived.

One’s income and assets must fall below a certain threshold to qualify for civil legal aid. The board’s website offers a helpful guide to calculate income and estimate if one would qualify. Annual income must be below ¤18,000 after the deduction of allowances and disposable assets must be below ¤100,000. If the case goes further, the board will seek the advice of a solicitor as to whether it should proceed to court. In giving their advice, the solicitor will look at whether they would advise an average person (paying for the case themselves) to proceed to court. In this way, the beneficiary of aid is in the same position as an average person.

There are some somewhat unavoidable issues with legal aid. While it is a vital part of the justice system and is essential for those who use it, it does not solve the overall problem. There are those who are wealthy enough to pay for it without assistance and there are those who are of low enough means to qualify for state assistance. However, those who are not poor enough to qualify for aid and not wealthy enough to be able to afford it on their own remain restricted. Article 40.1 of the Irish Constitution guarantees equality before the law. But, if people are restricted from taking a case before the courts, how equal are they? They may be treated equally when they get there but the accessibility of the system is anything but equal. However, it would be impossible to provide legal aid for every applicant. The line must be drawn somewhere

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and inevitably; some are going to find themselves on the wrong side of it. In any case, the need to reduce costs is balanced with the rights of lawyers to earn a living.

If legal aid is unavailable, one may be able to engage a solicitor who will litigate the case on the basis of a conditional fee arrangement. This means that the solicitor’s fees will only have to be paid if the case is won. Even if this is so, the fees are normally paid by the losing party. A solicitor will assess your claim and consider if success is likely and then, may offer to represent you on a “no win, no fee” basis. This method is an adequate way of dealing with the lacuna in the civil aid system, but there is a problem with the restrictive way the arrangement is constructed.

By virtue of the cost arrangement, the solicitor will only take the case if they are confident in success. This still alienates claimants that deserve

to be heard, but whose cases are not certain victories.

The question remains; what does the future of access to justice look like in Ireland? In 2011, the government announced that a Legal Services Regulation Bill was in the works. It has yet to be fully enforced but it proposes changes to the way legal services are regulated; especially when it comes to costs. It proposes a new legal costs office to make clear cost information available to the public, to provide a more predictable system for assessment of costs and independently adjudicate legal costs.

With Ireland’s legal costs being so high, some are restricted from realising their basic human and constitutional rights in accessing justice. What impact this Bill will have on legal costs for Irish citizens remains to be seen.

Assisted Suicide

Jasmine Hett and Danielle Higgins Assisted suicide has become a topical issue in Ireland due to recent high profile cases such as Marie Fleming and Gail O’Rourke. Assisted suicide is currently illegal in Ireland; there is no constitutional right to death. The HSE defines assisted suicide as “the act of deliberately providing assistance or encouragement to another person who commits, or attempts to commit, suicide.” It is worth noting that assisted suicide differs from euthanasia, which is the act of deliberately ending a life to relieve suffering.

Euthanasia may occur, for example, where a doctor gives a terminally ill patient an overdose of certain medicine in order to end his or her life.

Assisted suicide, on the other hand, commonly occurs where an individual of sound mind has a degenerative disease, such as Multiple sclerosis.

In this instance, said individual may wish to take their life when they have deteriorated to a certain level, but equally are unable to take their own life.

Both acts are illegal in Ireland, under the Criminal (Suicide) Act 1993. While this act decriminalised the act of suicide itself, assisting another in ending their life is still an offence.

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In 2013 Marie Fleming, who suffered from Multiple sclerosis, challenged Ireland’s ban on assisted suicide. Fleming applied to the High Court for a declaration that her husband could lawfully assist her in committing suicide, but was unsuccessful. In an appeal to the Supreme Court, the High Court’s decision was upheld. The Supreme Court, led by Chief Justice Denham, said that the constitutional right to life does not imply a right to die, and that there is no right to commit suicide. Denham J. did however note that

the legislature has the capacity to legislate for assisted suicide. Marie Fleming died shortly after bringing her challenge to the Supreme Court.

In 2015 Gail O’Rorke was accused of attempting to assist her friend Bernadette Forde, an MS sufferer, in travelling to an assisted suicide clinic in Switzerland. It is an offence to travel abroad with someone who intends to avail of assisted suicide, under the aforementioned 1993 act. An Garda Síochána were made aware of O’Rorke’s intention by her travel agent, and went on to warn her that this was illegal. O’Rorke was acquitted of attempting to assist Forde’s suicide due to insufficient evidence, however it is worth noting that Judge Pat McCartan called her an ‘honest, decent woman faced with a huge dilemma’. This case highlights the need for the State to deal more thoroughly with this issue through legislation.

In Europe, assisted suicide has been legal in Switzerland since 1940, Belgium and the Netherlands since 2002 and Luxembourg since 2009. On 20 January 2011, the European Court of Human Rights ruled that while there is a ‘human right’ to commit suicide, there is no obligation upon states to provide citizens with the means to do so. Outside Europe, assisted suicide is legal in six US States, as well as two provinces in Canada.

Various forms of medically assisted suicide have been approved in theses places, each with their own limits, rule and procedures.

Apart from Switzerland, all of these respective jurisdictions forbid non-residents or non-citizens

from using their assisted suicide clinics. This means that Swiss groups, such as Dignitas, receive a sizeable number of foreigners who wish to use their facilities, in what critics have deemed ‘suicide tourism’.

Tom Curran, Marie Fleming’s widower, has been working on a proposed bill for legalising assisted suicide in Ireland. It would attempt to ensure that people of able mind can choose to die with dignity. Curran notes that the bill has taken a long time to draft, in order to ensure that it would not allow people to take advantage of the vulnerable.

He notes that there is not much political appetite

for introducing and passing a bill on assisted suicide.

Many believe that it is necessary for the state to create a legal mechanism for those who wish to take their own lives but are unable to do so. There is fear surrounding the possibility that individuals may take advantage of assisted suicide by using it to kill vulnerable individuals. Any proposed legislation must ensure both protection of the weak and vulnerable, while balancing respect for those who have decided to commit suicide but are unable to do so.

Bitcoin: Inventing a Currency Fintan Doherty

Often described as the world’s first cryptocurrency, Bitcoin was invented by the enigmatic Satoshi Nakamoto, who published the invention on 31 October 2008 in a research paper entitled “Bitcoin: A Peer-to-Peer Electronic Cash System”. However, Nakatomo’s true identity remains unknown and has been the subject of a great deal of debate and conjecture. It is not known whether the name represents an actual individual or if it is simply a pseudonym for one person or group of developers. Irish academic Michael Clear, a graduate student in cryptology at Trinity College Dublin, is one such individual who has been credited with the identity in recent times.

can be “mined” is administered systematically (the amount is halved every four years), the final and total limit is expected to be reached around the year 2140. As there is no printing of the currency directly aligned with demand, it cannot be considered as susceptible to the dangers associated with inflation. The core aim of Bitcoin is to create a form of money that does not have to rely on placing trust in a central authority; a responsive action taken by those who felt disillusioned with the events of the recent global economic downturn. The system works without a central repository or single administrator, which has lead to its categorisation as a ‘decentralised virtual’ currency.

Bitcoin is essentially a peer-to-peer electronic payment system that operates as an independent currency. It is a virtual network that allows users to transfer digital coins to each other. At its most fundamental level, it is nothing more than a digital file that lists every transaction that has ever occurred on the network in its own version of a general ledger, called the “block chain”. Each Bitcoin consists of a unique chain of digital signatures that are stored in a digital wallet installed on the user’s computer. The wallet generates keys which are used for sending and receiving coins. A transfer of Bitcoins is made as the current owner of the coin uses a private digital key to approve of the addition of the recipient’s key to a string of previous transactions. The coin is then transferred and now appears in the recipient’s wallet alongside a recorded history of transactions.

Today it is possible to pay in Bitcoin for a wide variety of commodities and services, including: electronics, computer hardware, restaurant meals, legal services and even third-level education fees.

It has consistently risen in popularity since its launch on to the global markets in 2009; a feat attributed to the relatively low processing fees of the currency against its nearest rivals. A caveat has been provided by the European Banking Authority (EBA) which warns that Bitcoin users are not provided with the same legislative protections of refund rights or chargebacks, which are enjoyed by credit card processors.

As a result, it is essentially an irrevocable transactionary tool. Across the Atlantic, the New York Department of Finance and the Alabama Securities Commission have similarly noted “major concerns” about the use of Bitcoins. It is true to say that the abstract nature of Bitcoin poses a challenge to regulators, and just like any form of monetary value, Bitcoin can be used for both legitimate and illicit purposes. Pertinent questions relating to Bitcoin’s role as a facilitator for criminal activities came to light with the recent crackdown of Silk Road: the underground

Protective mathematical coding procedures are in place to ensure that the total number of Bitcoins do not exceed 21 million. At present, there are believed to be approximately 13 million Bitcoins in circulation. As the number of block chains that

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market that accepted Bitcoin exclusively for the purchase of illegal goods and services. With the added layer of anonymity created by Bitcoin funds passing through the Silk Road website were practically untraceable and by the time the site was finally shut down in October 2013, it had processed sales totalling the equivalent of 1.2 billion.

The fluctuation of Bitcoin’s value adds to its risk factor. Its value is determined by supply and demand and on the existence of great trust in the administrative system. The value of the currency has been noted as being subject to dramatic swings over relatively short periods of time. This has seen the currency attract investment by securities traders and stock market speculators. It would also be naïve to believe that Bitcoins were immune to fraud and the comments of the EBA highlight the absence of recourse available for those who suspect that they have been victims of deceptive behaviour.

With the ‘Age of Tech’ in full flow, we have witnessed the rapid expansion of the Bitcoin

currency from being a mere sub-cultural phenomenon to a genuine form of payment accepted by some of the world’s largest corporations, including: Subway, Amazon, Apple and professional NBA outfit the Sacramento Kings. Technology analysts have even gone as far as to claim that the technology behind the currency alone holds the capabilities of revolutionising the entire financial market place and the way that consumers interact within it.

Although critics have been vocal in their opinions, the use and growth of Bitcoin has predominantly been met with measured enthusiasm and acceptance by a growing number of traditional investors, venture capitalists and businesses.

What remains to be seen is whether and how the initial Bitcoin adopters will successfully integrate the currency into the fabric of the economy at large. This will largely depend on the ability of those in the Bitcoin community to adapt to changing regulation of the currency and their reaction to pressure imposed by international regulatory agencies across the globe.

Challenging a Referendums Mark O’Brien O’Reilly

Referendums in Ireland have their origins in the 1937 Constitution of Ireland. The constitutional provisions of Article 46 means, in practice, that every proposed amendment to the constitution must be passed by the people in a referendum.

The Referendum Acts 1994, 1998 and 2001 flow from that provision. The Constitution belongs to the people, and any decision to be made on any proposed changes is their prerogative to make, and theirs alone. To date, there has been 35 referendums, the last being the proposal to change the age of eligibility for the Office of President last May. The issues at the heart of referenda are often divisive, results are often close, and it is not at all uncommon that someone would wish to challenge the result of a referendum. Many important principles that govern the way referendum campaigns are carried out have come out of such cases as the McKenna case, which ruled that governments could not use public money to advocate or push for a specific side over the other in referendum campaigns When the votes cast in a referendum have being counted, and the referendum returning officer has received the results from all of the constituencies, a provisional referendum certificate is drawn up which will state the overall result and whether or not the proposed amendment has been approved 7

by the people. Any potential challenger has just 7 days to challenge the provisional certificate from the date of publication. If you wish to challenge the certificate, you must first present a petition to the High Court questioning the provisional certificate. In order to have the necessary standing to bring such a petition, one must be eligible to vote in a Presidential Election.

If no petition is presented to the High Court within those crucial 7 days, the certificate becomes final. If the final certificate shows that the majority of the votes cast were in favour of the proposal to amend the Constitution, the Bill is signed by the President and the Constitution is then amended accordingly.

The Law surrounding such challenges is set out in the 1994 Referendum Act. Under the Referendum Act, a petition challenging a referendum result may only be brought with leave of the High Court. That Act sets out the grounds under which applicants may question whether the result of the referendum as a whole was affected materially, such as obstruction of or interference with or other hindrance to the conduct of the referendum, or by a mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.

The Supreme Court last year, in dismissing a challenge to the 2012 Children’s Referendum, clarified the test which must be met for a challenge to a referendum or election result to succeed. The 1994 Referendum Act requires that a person challenging a referendum result must prove unconstitutional conduct “materially affected” the outcome. However in Jordan, the court set a new test for considering whether there was material effect. That test stipulates that “material affect” on the outcome of a referendum involves establishing it is “reasonably possible that the irregularity or interference identified affected the result”. The object of the test is to identify the point at which it can be said “a reasonable person could be in no doubt about, and no longer trust, the provisional outcome of the election or referendum”.

In simple terms, for a challenge to succeed, the onus is upon the challenger to prove that the effect of the conduct in question affected the result to such an extent that the average voter would feel the result cannot to be trusted. This has substantially raised the bar, and as we saw with later challenges to the marriage equality

referendum, made it even harder for such cases to gain the necessary leave. The leave will only be granted in cases where the applicant has satisfied the court that the necessary legal issue is of such public importance, that the court has no choice but to grant the leave. If an applicant is unhappy with the outcome, since 2014, they can appeal to the Court of Appeal and then, ultimately, to the Supreme Court. As a consequence, substantial time can elapse before the final outcome of such proceedings is known If the necessary leave is granted, which only occurs in a small number of cases as Judges are naturally unwilling to be seen to interfere with the democratic wishes of people, then the next step is a hearing in Court. Both the applicant and the State will present their arguments through counsel. The outcome of this will be to determine if the legislation is repugnant or not. The burden of proof required to be met is very high. If the court strikes down the challenge, then the final referendum certificate will be granted, and the President will be directed to sign the amendment into law.

Church & State: Religious Discrimination in Schools Jessica McCarthy and Helen Carroll

Introduction The Catholic Church has enjoyed a dominant position over State related matters throughout history, and to this day religion is still firmly entrenched in the Irish educational system. In this article we will review the involvement of the church in education throughout Irish history, we will then highlight the modern day position of the Catholic Church in education, with particular focus on the discriminatory nature of the admissions policy. Lastly we will discuss how this policy is in stark contravention of fundamental legislation laid down by the state, and the implications for parents as a result of this policy.

The History of the Catholic Church’s involvement in the Irish Education System The Catholic Church has been consistently involved in the education system, since the foundation of the state. In the 17th Century the British ruled Ireland and several public officials were forced to emigrate. Priests then replaced them as leaders in the local community. In the early 19th century the Catholic Church insisted religious instruction should be made available in state subsidized schools, thus increasing their influence in Education. Post-

independence the Department of Education was established in Ireland and the responsibility for the administration of education was governed predominantly by Catholics. Politicians refused to involve themselves in matters regarding the church. In the early 1930s vocational schools were established and from the 1960s onwards, there was a dilution of church power. The number of religious personnel in secondary schools dropped dramatically. The creation of the Education Act 1998, represented major progress. Before this the state had not fully responsible for the funding of schools, as the patron had made contributions. Now they must provide full funding for schools. So as we can see from this the Church’s stronghold in our education system has dwindled considerably but there is still room for improvement.

The Role of the Catholic Church in Education Today Despite progressions regarding the church’s involvement in education, there are still unresolved issues. Over 96 percent of primary schools are of Catholic patronage, despite being entirely funded by the state. All schools are required to allocate thirty minutes a day to religious education. Over the past 12 years the 8

Catholic Church has introduced a “Catholic first admissions policy”. This is completely illegal as it is in contravention of several laws which promote the legal right of children, of all religions, to be taught together in the same schools.

“A Catholics first” Admission Policy In Ireland we utilise the national school system.

This system is supposed to provide primary education to all the children of their state regardless of their religion. Section 15(2)(d) of the Education Act 1998 places an obligation on the board of management of every school, to publish an admissions policy. A Catholics first policy was then developed due to a lack of places available for children. This meant that Catholic children living within the parish were to be chosen for admission first. This “Catholics first” admissions policy is in contravention of a whole plethora of fundamental legislation laid down by the state.

Legislation that the Admissions Policy Contravenes

Act 2004, schools cannot discriminate students on nine protected grounds, including age, sexuality, religion etc. There are two exceptions to this. The first is if the school is registered as a “single-sex” school, and secondly if the school wants “to provide education in a religious environment”. The latter causes issues when parents try to enrol children in the local schools.

Once admitted, a child cannot be discriminated against on those nine protected grounds, but gaining admission is the hardest part. Parents can object to religious education of their child once the child is enrolled and the teachers would have to comply, yet parents have little choice but to apply for multiple schools if they are not of the faith that the school requests they be.

We can see from this that the national school’s admissions policy is in contravention of all of the legislation mentioned above and urgently needs to be revised.

The Equal Status Act 2000 and the Implications for Irish Parents

The Equal Status Act was promulgated into Law to prevent discrimination on a number of protected grounds, including religion. However, 1. The Constitution: A Catholics first admission a loophole in this Act, section 7(3)(c) allows policy in a national school, is in contravention a discriminatory admissions policy in order to of Article 42 - 44 of the constitution. “maintain the ethos of the School”. However the necessity of refusal must be proven by 42.4: Allows for the establishment of the school, and the refusal must be essential.

national schools. This article allowed Section 7(3)(c) has taken its toll on the general

for the creation of religious schools also population. There have been multiple parents

but these schools were intended to be who have recently spoken of their struggles to

private and unfunded by the state. Under get their children (who are of a different faith)

the legislation parents can send their registered in a school. Many of them must apply

children to a religious private schools

which the state “shall endeavour” to fund for multiple schools. This has even led to what has been dubbed “baptisms of convenience”,

in certain conditions. where the parents baptise their children in order to enrol them in a specific school. Even when a 44.2.2: States that the state cannot non-baptised child does gain access to a Catholic

provide funding for religious education. school, they are often baptised by parents who

The state currently pays teachers in are worried the child will be seen as “different”,

national schools to teach religion and

promote religious indoctrination. This is in especially when it comes to attending religious ceremonies (communion, confirmation etc.) Many

clear breach of Article 44.2.2.

Priests are opposed to the idea of baptisms of convenience, with the Archbishop of Dublin 44.2.4: This article allows the state to Diarmuid Martin calling it “an abuse of baptism”.

support religious schools provided, the The fact that the people of Ireland are forced

school does not apply discriminatory

measures. All schools that receive public resort to such extremes to educate their children, highlights all that is wrong with the implications

funding cannot dictate enrolment based of section 7 3(c) of the Equal Status Act and the

on religious grounds. churches involvement in Education.

2. The 1998 Education Act: A Catholics first admissions policy is in contravention of the 1998 Conclusion education Act. This is because the Patron is dictating the admissions policy, which under the It could be deduced from this, that the legislation is the sole responsibility of the board admissions policy of Irish national schools is of management. discriminatory in nature and in severe need of reform.

3. Equality Act 2004: According to the Equality

9

Consumer Rights in a Digital World Laura McDonnell

On the 25th May 2015, Minister for Jobs, Enterprise and Innovation Richard Bruton unveiled a publication of the Consumer Rights Bill 2015 which, when enacted, will dramatically reform consumer law in Ireland. The Bill, which is hoped to become law by the middle of this year, proposes to consolidate and amend various aspects of consumer law in Ireland, codifying national and EU law. Various commentators, including The Consumers Association of Ireland, have welcomed the proposed changes, believing the Bill to be a positive step towards reform which has addressed a number of key grey areas in Irish consumer law.

In 2011 the Sales Law Review Group (the “SLRG”) published a report on the current law in Ireland, advocating a consolidation of the law under one comprehensive piece of legislation – a Consumer Rights Act, similar to the UK. The report of the SLRG identified crucial gaps in Irish consumer law relating to a number of issues. These included the lack of statutory legislation relating to the rights of consumers and trader’s obligations, especially in relation to digital content. In total the SLRG made 124 recommendations for reform and the report’s findings and are reflected in the recent Bill which is intended to tighten up this area of the law and provide greater certainty to consumers and traders alike.

Currently, there are no statutory protections in place for consumers in respect of defective digital content they have purchased. The Consumer Rights Directive 2013 does afford certain protections, however, these safeguards are of negligible value to consumers in regards to product quality for example. In Ireland, the exact legal status of contracts for digital content is unclear. This has been one of the main reasons behind the lack of consumer protection in this area. There are typically three common categories for which digital content might qualify under the current law; sale of goods, supply of services or licensing agreements. Unfortunately for consumers of digital content, none of these are a comfortable fit.

Significant debate has centred on whether digital content falls within the statutory definition of ‘goods’ found in the The Sale of Goods Act 1893.

This is an important classification as it would have the effect of affording consumer’s rights and remedies in respect of defective software.

Importantly, it would seem that for digital content to be classified as ‘goods’ it would need to be contained on a tangible medium – such as a disc or USB stick. As such, a CD, DVD or video game disc would be considered a tangible good which affords the consumer protection under the 1893 Act, just like any other tangible product.

However, if digital content is downloaded by a consumer over the internet, the product will not be classified as ‘goods’ for the purposes of the legislation, thus leaving the consumer uncertain as to his or her rights and remedies should the product prove defective. This is particularly cause for concern in cases where a consumer has downloaded a defective film, album or computer game – given the fact their exact counterparts, if contained on a disc, would afford the purchaser rights and remedies. In a modern technological society where downloading products online has become so prevalent, a consumer should not have their rights limited by such archaic concepts of property and ‘goods’ and this is a significant problem in our current law.

Debate has also centred on whether such contracts - for example computer software installations made by companies like Microsoft - are sale of goods contracts at all or if they instead fall within the remit of supply of services governed under Part IV of the 1980 Act in Ireland.

Classifying digital content under supply of services causes a number of problems, the main issue being the narrower remedies available in relation to defective goods. The duty of suppliers to provide materials of merchantable quality under Section 39 of the Sale of Goods and Supply of Services 1980 Act is not automatically classed as a condition of the contract, as would be the case with section 14 of the 1893 Act which implies a condition of merchantable quality into sale of goods contracts, the breach of which gives rise to strong remedies for consumers.

Questions have also arisen as to whether the downloading of digital content is actually a licensing agreement rather than a contract for the sale of goods or supply of services, with the consumer simply obtaining a licence to use the product when they download it. This position is equally problematic given the fact that very often use of intangible digital content is subject to licence terms, leaving consumers uncertain as to their rights should problems arise.

At a basic level the Bill proposes that consumer law protection afforded to other goods will be extended to intangible digital content and software in respect to quality for the first time in Ireland. This means digital products sold in the course of a business must be of satisfactory quality, match their sale description and be fit for the particular purpose for which they were bought. It is proposed in the Bill that the supply of digital content will be governed as a sui generus category of consumer legislation, meaning that contracts for the supply of digital content will be treated as a separate and distinct category of contract. Providing a bespoke set of 10

rights and remedies suitable for digital content will, it is hoped, provide clarity on the rights of consumers who purchase digital content, as well as obligations placed on traders who supply the products.

The Bill clarifies, to a certain extent the classification issues and the legislation applicable to digital content depending on the form it takes. Currently, the provisions of the Bill are not applicable where consumers have downloaded software for free. However, the Minister of Enterprise, Jobs and Innovation can extend the proposed provisions of Part Three to digital content supplied without a fee where there has been some loss or cost to the consumer.

Given the volume of free software available to consumers (for example on Apple’s “App Store”) an extension of protections in this area would be welcomed.

The Bill is intended to bring consumer protection in the digital sphere in line with the standard afforded to other tangible goods by imposing an implied term of ‘satisfactory quality’ on eligible digital content. This implied term of satisfactory quality is a key element of consumer protection which had previously been absent in contracts for the supply of intangible digital content, and as such is a very welcome development in the law.

The term ‘satisfactory quality’ (seen throughout the Bill) is a move away from the traditional merchantable quality standard, towards the current UK position which has been in operation since the mid 1990’s. The Bill proposes a reasonable standard test in terms of quality.

This is a pragmatic approach as it would be reasonable to expect bugs in digital content trial versions. However, a consumer’s expectation of high quality is reasonable in relation to contracts

for the supply of certain digital content such as a film or an e-book.

The proposed remedies afforded to consumers who have purchased defective digital content are broadly similar in nature to current laws governing the the sale of goods. Remedies in respect of a right to a price reduction for defective goods, a right to terminate a contract for the supply of digital goods, as well as a right in respect of repair and replacement are provided for in the proposed Bill. The Bill has also provided some ‘digitally tailored’ remedies which provide consumers with more extensive protection than a mere transposition of the law would have provided, in particular remedies for possible damage caused to a host device or other software by purchased digital content. This is an inclusion of huge practical importance to consumers who would have had to previously cover costs of damaged goods themselves.

Overall, the reforms and new provisions proposed in the Bill can be seen as a very welcome development in Irish law. Given the technological advancements made in recent years and the ordinary consumer’s growing reliance on online transactions in the same period, the Bill’s proposals around digital content are a practical reply to consumer needs. The provisions proposed in respect of implied terms of quality for intangible digital content, as well the remedies in respect of defective products were urgently needed consumer safeguards. Although the proposals could go further in respect of, for example, contracts for the supply of digital content where no fee has been paid, there is scope for expansion should the Bill become law in the near future.

Controlling Crime vs. Protecting Your Rights: The DPP v JC Debate Emma Ní Arrachtáin & Robert Lee

Undoubtedly the landmark development in Irish Constitutional & Criminal Law in recent months has been the change in the rule on the admissibility of evidence in court which has been obtained in breach of an accused’s constitutional rights. The decision of the Supreme Court in DPP V JC overruled the longstanding decision of DPP v Kenny resulting in a new test which sets out to balance the rules of evidence.

The Supreme Court in AG v O’Brien set out the original test regarding unconstitutionally obtained evidence. The decision stated that 11

the evidence must be excluded from the trial if the following four criteria apply; (i) there was a breach of the accused’s constitutional rights, (ii) the breach was conscious and deliberate, (iii) there was a causal link between the breach and the evidence obtained, (iv) and finally there was no extraordinary circumstances which would render the evidence admissible.

The decision in O’Brien was subsequently narrowed by the Supreme Court in the case of DPP v Kenny, where the Court, in a judgment delivered by Finlay CJ, argued that the courts

were obliged to defend and vindicate the personal rights of the citizen under Article 40(3)(1) of the Constitution. The Court affirmed that the objectives of crime control could not outweigh the constitutional mandate to protect the constitutional rights of citizens. It followed that evidence obtained by offending the constitutional rights of the citizen must be excluded unless it could be shown to the Court; (i) that the act which breached the rights of the accused was itself committed unintentionally or accidentally or (ii) that there were extraordinary excusing circumstances. The reality of the rule was that there was a near absolute exclusion of unconstitutionally obtained evidence giving Ireland one of the most stringent rules relating to unconstitutionally obtained evidence in the common law world. The decision was criticised heavily both academically and politically which led to the recent change in the law relating to the “conscious and deliberate” element.

The new rule on unconstitutionally obtained evidence in DPP v JC sees the watering down of the quarter century old safeguard afforded to an accused. The judgment begins by plainly stating that Kenny was incorrectly decided and consequently the exclusion of evidence in previous cases may have been wrong. It is clear that the majority was attempting to strike a balance between the rights of the accused and the strong public interest in effectively prosecuting crime. This contrasts with the view of the Court in O’Brien and Kenny, which was less inclined to risk infringing the rights of the accused by engaging in such a balancing act The new rule states that the: “evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments”. The implication is that where the Gardai inadvertently breach protected constitutional rights (such as privacy), this will not automatically exclude evidence. The test requires that the prosecution must show that the evidence was not obtained as a result of a breach of a constitutional right and if the evidence was obtained unconstitutionally, that it is vital and important that the court admit it. From the prosecutor’s perspective, it mitigates the rigidity of the old rule which required absolute exclusion. In theory, at least, this should allow for more effective prosecution of crime as the new rule lowers, although does not remove, a potential hurdle faced by prosecutors.

However, the judgment contains no guidance

on how the prosecution can prove this “inadvertence” as the requirement to do so extends not merely to the Gardaí directly involved. The test now takes in the mental state of Gardaí along with their actions in the carrying out of their duties, the reality of which is that senior members of the Gardaí cannot use those under their command to breach the constitutional rights of the accused. For example, Inspector X orders Garda Y to search a particular house but does not tell her that he knows the warrant is faulty. While Garda Y’s actions in entering the house on the authority of a defective warrant were deliberate, she did not do so intending to breach the suspect’s right against unlawful entry to his home. The prosecution may later attempt to argue that the breach of the accused’s rights was “inadvertent” and that the evidence obtained during the search is still admissible. What undermines this argument is that Inspector X was aware that Garda Y would be breaching the suspect’s rights but ordered her to search the property regardless. Under the DPP v JC rules, Inspector X’s intention to breach the rights of the accused contaminates the actions of his subordinate, Garda Y. Furthermore, evidence acquired by means of a deliberate and conscious breach should be excluded according to the new test unless there are excusing circumstances. Where the prosecution establishes that the breach merely occurred as a result of inadvertence or subsequent legal development, then the evidence should be admitted. Conversely, where the evidence is acquired in a manner that would render it unable to be constitutionally obtained then it cannot be admitted even if it was obtained through inadvertence or a subsequent legal development.

The significance of DPP v JC is the new inadvertence or subsequent legal development test, which will not automatically exclude unconstitutionally obtained evidence. The decision of the Supreme Court completely altered the jurisdiction’s approach to unconstitutionally obtained evidence replacing an almost blanket ban with a test that aims to balance the constitutional rights of the accused with the right of the public to have the evidence heard.

Unquestionably, it realigns this aspect of the criminal justice system in favour of the State, at the expense of the suspect. The previous absolute protection has been compromised for a much weaker protection, which potentially excuses a breach of the most fundamental rights afforded to the individual by the Constitution.

12

Court Wardship Explained Tara Casey

Wardship is a concept with which many outside the legal world are unfamiliar. In simple terms, it involves the High Court taking over the management of the assets of an individual (the ward) and using them for the ward’s benefit.

This is usually done because the ward, due to mental incapacity, is unable to do so themselves.

It is a form of asset protection used as the court has deemed the ward to be no longer capable of managing his/her own affairs. The majority of those taken into wardship are adults who are no longer able to look after their own affairs, but wards can also be those under 18 who have been awarded damages by a court who are of sound mind, but have other issues such as special housing needs. Reasons for wardship are varied with 36% of wards in 2014 classified as ‘elderly mental infirm’ cases and 22% of wards described as having psychiatric illnesses.

The person who applies to make another a ward of court (known as the petitioner) is usually, but does not have to be, a relative of the person who will potentially become a ward (known as the respondent to the petition).

Before a person can be made a ward of court, investigation is done both by the petitioner, and also the High Court, if it deems the petitioner’s petition to have sufficient merit. The petitioner completes a written submission to the High Court outlining the respondent’s details and assets.

This submission is accompanied by medical reports from the respondent’s GP and another doctor, usually a psychiatrist, which will outline the respondent’s mental state and whether or not they are capable of managing their affairs.

Based on this evidence, the High Court then has two options; dismiss the application, or conduct further inquiry of its own using High Court appointed doctors. The High Court will grant the petition if, after its own inquiry it is satisfied that the proposed ward is no longer capable of looking after their affairs and assets.

The application must be served on the proposed ward to give them time to object to the proposal.

The respondent can object to an inquiry being made, if this occurs there will be a hearing before the President of the High Court following the proposed ward’s objection and, while there may be a jury present if the President so decides, the proposed ward does not have an automatic right to a jury.

If the High Court decides that a person should be made a ward of court, a committee is appointed.

A committee is a person or group of people to whom the ward’s assets are ‘committed’. This means that the committee is now the person managing the ward’s assets and affairs for the benefit of the ward. The committee is mainly involved in managing the personal care of the 13

ward and providing assistance to the Court in the ward’s financial affairs management. The committee will also take on some day-to-day tasks of the ward such as dealing with the ward’s taxes, insuring the ward’s property and ensuring that the ward’s clothing and personal needs are met. The committee is overseen by the Court and the Office of Wards of Court and is in correspondence with them regularly.

A ward’s control over their assets is substantially restricted during the period of wardship and if they are in need of medical treatment that requires consent, it is the Court who provides consent, not the ward themselves. Property cannot be bought on behalf of the ward for investment purposes, but it can be bought if they are capable of living in the community and if they currently do not have any suitable accommodation. The ward cannot marry during the period of wardship although any existing marriage is not affected. They may not travel outside of the country without the Court’s permission. They can only make a will if there is medical evidence to show that they are capable of doing so and their solicitor is also satisfied of this. On death of the ward, their estate is used to pay off any remaining debts, and then the remainder is distributed according to the law of succession.

Court wardship as previously stated is not something with which many people are familiar.

However, in 1996, a high profile case sparked conversation in Ireland. The case, known as In Re a Ward of Court (No. 2), involved a ward who had been in a vegetative state for over 20 years.

Her family made an application to withdraw her treatment. The case centred on the right to life which is enshrined in our Constitution, and whether or not a right to die a natural death with dignity could be inferred from the right to life. With a factually complicated case involving complex medical evidence of whether or not there was any brain activity, the Supreme Court applied a balancing of rights test and decided that it was in the best interests of the ward to withdraw treatment. This, however, is an extreme example of the type of decisions the court has to make on behalf of a ward, with much more common issues generally being financial in nature.

The only alternative to court wardship where a person is incapable of managing their own property is enduring power of attorney. This involves completing a document when you are of sound mind, which will give a named person power to make decisions on your behalf in the event that you become mentally incapacitated and unable to do so. The main difference with

enduring power of attorney is that you get to choose who will manage your assets and to what extent. However it must be done at a time when you are mentally capable of doing so. Enduring powers of attorney seem to be more common in Ireland, with 650 being registered in 2014,

with only 322 adults and minors being taken into wardship in the same year. With the ageing population of Ireland we are likely to see growing numbers of both enduring powers of attorney and court wardships in coming years.

Current Issues in Irish Asylum Law David Murray and Ashley Minogue

Direct Provision was established in 2000. It is a means of accommodating those applying for asylum in Ireland. Direct Provision is overseen by the Reception and Integration Agency and provides full board and meals for asylum seekers.

Currently, adults receive ¤19.10 and children receive ¤9.60 in a weekly allowance provided for by the state. The conditions of Direct Provision have been placed into the public eye in recent years with a number of public protests and lobbying by the Immigrant Council of Ireland and the Irish Immigrant Support Centre (Nasc).

Furthermore the ongoing refugee crisis that Europe faces merits an examination of the current issues in Irish Asylum Law. In 2015, 1.015, 078 people arrived in Southern Europe by sea from countries such as Syria, Afghanistan and Iraq. In 2016, 163, 588 have made the same perilous journey. The current refugee crisis is the largest mass-migration since the break of former Republic of Yugoslavia. As it engulfs the European Union, it is important to note and assess the role that Ireland will play in combating the crisis. This essay aims to assess the current system in place for receiving and accommodating asylum seekers and their families whilst their applications are being processed.

Direct Provision is a system which provides for the material needs of asylum seekers such as accommodation, food, healthcare and support. The main focus of this article will be on the accommodation that is provided by the Reception and Integration Agency (RIA). The RIA is a unit within the Irish Naturalisation and Immigration Service (INIS), which is a division of the Department of Justice. The agency’s main responsibilities are to provide a system of accommodation and support services to asylum seekers whilst their applications are pending.

The RIA does not manage the centres on a day to day basis. Instead, it contracts the running of the centres to private companies. The RIA is responsible for the formation and setting of the ‘house rules’ that are in place in the thirtyfive accommodation centres across Ireland, with private companies responsible for their implementation. Asylum seekers do not have an obligation to reside in the accommodation centres provided by the RIA; they can choose to

stay with friends or relatives. However, the vast majority of asylum seekers stay in the centres during their application.

The Irish courts in a number of instances have heard cases relating to various aspects of Direct Provision, with mixed results. In NHV v Minister for Justice, the applicant made numerous claims regarding the structure of the system, including the restrictions placed on asylum seekers. The applicants claimed that asylum seekers had the right to work or earn a livelihood under Article 40.3 of the Constitution and Article 8 of the European Convention on Human Rights. They claimed that the blanket prohibition on asylum seekers entering any form of employment was incompatible with Article 8 of the above named Convention, along with European Union Law and the Charter of Fundamental Rights.

McDermott J in the High Court disagreed with the claims of the applicants. In a detailed judgment, he noted that the presence of asylum seekers is entirely regulated by the provisions of the Refugee Act 1996. This included their ability to seek and obtain employment. McDermott J referred to the earlier Supreme Court ruling in Re Article 26 and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999, which laid down the principle that in certain circumstances, the constitutional rights of non-nationals may not totally coincide with the rights of citizens.

McDermott J also placed emphasis on the objectives and aims of the State in protecting its borders and territory, holding that these fundamental rights of the State were sufficient public policy objectives to justify a prohibition on access to the labour market for asylum seekers.

Whilst challenges to the structure and framework of Direct Provision have faced difficulties, the courts have been more receptive to disputes that are more focused on the day-to-day running of the centres. The ruling of MacEochaidh J in C.A and T.A v Minister for Justice is an example of the courts dissecting and assessing the conditions of the accommodation centres, including the ‘house rules’ attached to each centre. C.A was a Ugandan national who brought a challenge to various conditions and rules of the Eglington

14

Accommodation Centre in Galway. The High Court found that numerous rules laid down by the Reception and Integration Agency (RIA), were a disproportionate interference with various fundamental rights. MacEochaidh J found issue with the prohibition on guests visiting private quarters, the rules requiring asylum seekers to sign in and out when leaving and entering the centre, the rules pertaining to unannounced bedroom inspections and searches and finally, the complaints procedure that was available to asylum seekers staying in these accommodation centres.

It should be noted that these rulings were made specific to the Eglington centre; therefore it is not a broad ruling applicable to every single accommodation centre. The House Rules provided by the RIA were recently updated in 2015 and still place a restriction on guests visiting rooms in certain accommodation types, along with provisions permitting unannounced room inspections. However, the ruling of MacEochaidh J is an example of the courts being particularly analytic of the conditions imposed on asylum seekers, partially ensuring that the RIA and the

accommodation centres are held to the highest standards possible.

Direct Provision is not the sole issue in the context of Irish asylum law. Attention must be paid to the International Protection Act 2015, which was passed by the Oireachtas in late 2015.

The Act concerns the application process of an asylum seeker, therefore having no impact on the structure and conditions of Direct Provision.

The Act introduces a new streamlined application procedure, with the aim of reducing the amount of time that an asylum seeker would spend in Direct Provision. However, at the time of writing, the Act as a whole is currently not in force, therefor e rendering it premature to discuss its effects. As illustrated above, Direct Provision has been subject to challenge in the courts with limited success. An asylum seeker has no right to work and is wholly dependent on the state for subsistence whilst their application is being processed. Asylum seekers have had limited success in challenging the conditions and house rules within direct provision. It appears that the conditions in direct provisions will remain an issue of debate.

Ensuring Equality: The Equal Status Act Danielle Clarke

The Equal Status Act came into force in 2000. It deals with discrimination and related conduct in the provision of goods, services or facilities to the public. The purpose of the Act is to promote equality, prohibit discrimination, prohibit harassment, stop victimisation, promote ‘reasonable accommodation’ for people with disabilities, and allow a broad range of positive action measures. The Act covers those who buy or sell goods, use or provide services and facilities, provide or use accommodation, and attend or manage educational establishments.

The Equal Status Act prohibits discrimination on nine grounds: 1.

2.

3.

4.

5.

6.

7.

8.

9.

Gender Race (skin colour, ethnicity, nationality etc.)

Sexual Orientation Family Status Civil Status (married, single, widowed, civil partnership etc.)

Religion Age Disability Membership of the Travelling Community

The Act further prohibits discrimination against a person on the basis of association with another 15

person, acting as a witness on behalf of that person, giving evidence on their behalf, legally opposing an act which is unlawful under the Act, or a person who has given notice of an intention to take any such actions.

Discrimination Discrimination is described as the treatment of a person in a less favourable way than another person is, has been or would be treated on any of the nine grounds listed. There are various types of discrimination.

• Direct discrimination involves less

favourable treatment based directly on the discriminatory ground. For instance, discrimination based on the race ground may arise where a non-national is treated in a less favourable way than an Irish national.

• Indirect discrimination arises where less

favourable treatment is based on a seemingly neutral aspect instead of a discriminatory ground. An example of this is requiring evidence of a fixed address as a condition of service might discriminate indirectly against Travellers or non-nationals.

• Discrimination by association occurs when

a person is treated less favourably because they are associated with or connected to another person. For example, someone being harassed because they were married to someone of a different religion.

• Discrimination by imputation is when a

person is treated less favourably because it is thought that they belong to one of the categories in the nine grounds, whether or not that is the case. This may arise if someone has a dark complexion and as a result are refused a product or service because the service provider assumes that they are of a different race or nationality.

Harassment is also a form of discrimination. It includes any form of unwanted conduct related to any of the nine discriminatory grounds. Racist slurs, sexist or homophobic comments that are unwanted are all considered harassment. Sexual harassment is a form of verbal, nonverbal or physical conduct, which is unwanted and is of a sexual nature. The unwanted conduct might take the form of actions, gestures, spoken words, written words, emails, text messages, pictures, etc.

Making a Claim A claim may be made under the Equal Status Acts if a person feels that they have been discriminated against. Firstly, the claimant must notify the individual who the claim is being made against in writing within two months of the incident occurring. This written notice must identify the nature of the claim and the intention of the claimant to seek redress. If this written notification is not sent then a claim cannot be pursued.

Subsequent to sending a notification to the person or company against whom you are making a complaint, a complaint can then be made to the Workplace Relations Commission (WRC) in regard to alleged discrimination or unlawful treatment. The WRC is similar to a court and will examine the claim and make a ruling on it. It will deal with the claim by either mediation, investigation, or both.

The respondent is not under any obligation to respond to the notification. If the respondent does not reply, or if they provide false or misleading information then the WRC may, if they deem appropriate, take this into account when they are deciding the case. If the claimant is not satisfied with a reply they have received, they can then make another complaint to the Office of the Director of the Equality Investigations. They must receive this complaint within 6 months of the incident.

If a person wishes to make a complaint against

a registered club or licensed premises then they must refer to the District Court rather than the WRC. Appeals are possible under the Equal Status Acts from either the WRC or the District Court and are dealt with by the Circuit Court.

Bringing a Case One of several cases that come before the Equality Tribunal are those involving publicans who have refused to serve members of the travelling community. This kind of behaviour violates the Equal Status Acts and if brought successfully before the court often results in the victim claiming compensation.

If one wishes to bring a complaint to the Equality Tribunal the procedure is cheap and easy. After making a claim, a complainant is only required to establish a prima facie i.e. self-evident case, so the burden of proof shifts to the respondent to prove that he has not discriminated against the complainant. In cases involving travellers, three elements must be established for a prima facie case: 1. Membership of the traveller community 2. Evidence of specific treatment of the complainant by the respondent 3. Evidence that the treatment received by the complainant was less favourable than the treatment a non-traveller received, or would have received, in similar circumstances.

Defences: There are two defences open for publicans who face discrimination complaints within the Equal Status Acts.

Section 15 (1): States that a service provider is not required to serve a customer if he has reasonable grounds for believing that providing service could result in criminal or disorderly conduct or behaviour or cause damage to property.

Section 15 (2): Provides that action taken in good faith for the sole purpose of complying with the Licensing Acts does not constitute discrimination.

For instance, in O’Reilly v The Dragon Inn Pub, there was no discrimination where the complainant had been refused service because the barman believed he had enough to drink.

The publican and his staff were allowed to refuse service in order to comply with the Licensing Acts, 1833-1999.

Section 42: Makes a publican vicariously liable for the actions of his employees, unless as the employer, he took reasonable steps to prevent staff from engaging in discrimination.

General Exemptions There are several exceptions to the Equal Status Acts: 16

1. Statutory Exemption: Nothing in the Equal Status Acts should cause a person to breach any other Irish law or any EU laws and treaties that have been adopted by Ireland.

2. Exemption Regarding Certain Nationals of Other Countries: Public authorities can treat certain nationals of other countries differently on the basis of their nationality if they are unlawfully in the State or if it is provided for by law.

3. Exemption for Risk of Criminal or Disorderly Conduct: An individual can be refused goods,

services or accommodation if an experienced provider believes that there would be a substantial risk of that individual abusing the service and causing trouble by being abusive or aggressive.

4. Exemptions for Other Reasons: Discrimination does not occur if a person is treated differently because of a doctor’s clinical judgment in relation to the person’s medical condition. It is not discrimination to treat a person differently in circumstances where a person is not capable of entering into a contract or giving informed consent.

From Criminality to Equality: Same­sex Marriage Conor Gilheany

Introduction The Marriage Equality referendum was one of the most heavily publicised events of 2015, sparking debates, nationwide marches and the highest voter turnout since 1992. With a 62% majority the constitution was amended to allow couples of the same gender the right to marry one another and have their marriage afforded the same legal status as opposite sex couples. This was a major advancement in the path to LGBT+ equality, but came after a long history of inequality and criminality.

Historical Attitudes to Homosexuality Although Ireland was the first country in the world to legalise same-sex marriage through a popular vote, homosexuals in Ireland have not always been so accepted and supported.

The relevant legislation that made sexual intercourse between males illegal was Section 11 of the Criminal Law Amendment Act 1885, which provided for a “term of imprisonment not exceeding two years” for any man found guilty of an act of “gross indecency” with another man. The courts had interpreted gross indecency to include any act of homosexual behaviour other than sexual intercourse itself. Sections 61 and 62 of the Offences against the Person Act 1861 governed the penalties for buggery (sodomy) and attempted buggery, which were far more severe than those for gross indecency.

A person found guilty of sodomy could be kept in penal servitude, or forced labour prisons, for a minimum of ten years up to life.

The gay rights movement in Ireland began in 1973 with the founding of the “Sexual Liberation Movement” (S.L.M) by David Norris in Trinity College. The S.L.M gave the LGBT people a voice during a time when the church had 17

great influence over the country. The brief but energetic movement broke off and spurred on a number of gay rights activist groups around the country. The first Gay Pride festival was held in 1983, in a tumultuous climate which flowed from the intentional killing of a gay man named Declan Flynn, and the outrage that followed his killers being given suspended sentences for manslaughter.

Norris v Ireland Senator David Norris, the founder of the S.L.M., was the first pioneer in the fight for decriminalisation of homosexuality in Ireland.

In 1977 he commenced legal proceedings to challenge the constitutionality of criminalising homosexual acts under Bunreacht na hÉireann.

The High Court rejected Norris arguments that such a ban infringed upon the individual’s rights to privacy, and the Supreme Court affirmed this ruling in a 3-2 majority decision.

In 1980 David Norris took his case to the European Court of Human Rights in Norris v Ireland, challenging the validity of Ireland’s criminalisation of homosexual acts under Article 8 of the European Convention of Human Rights as a breach of the individual’s right to privacy.

The Court found that such a ban on homosexual activity was a breach of the Convention and overturned the decision of the Irish courts. The win in this case paved the way for the Criminal Law (Sexual Offences) Act 1993 which fully decriminalised same-sex sexual activity.

The Continued Struggle for Equality The decriminalisation of homosexuality did not see the end of the gay rights movement in Ireland. For the rest of the twentieth century LGBT activist groups grew bigger and

continued lobbying for new legislation banning discrimination, and for the introduction of same sex marriage in Ireland. Today discrimination on the basis of sexual orientation is outlawed by the Employment Equality Act, 1998 and the Equal Status Act, 2000.

A Law Review Commission paper in 2000 recommended the recognition of qualifying cohabiting relationship without distinction to sex, where couples would receive increased protections if they are in marriage-like relationships. This was the first proposal of elevating rights for same sex couples to those similar to couples of opposite genders. However, in 2004 the All-Party Oireachtas Committee on the Constitution received a mass volume of responses after inviting recommendations relevant to the Articles relating to the family. The majority of the replies were against altering the meaning of marriage and the family to include same-sex couples, and the committee responded by recommending that qualifying cohabiting relationships should be limited to heterosexual couples.

The Colley report in 2006 recommended that civil partnership would resolve current problems faced by cohabiting and same-sex couples, but would not provide the same benefits as marriage.

Civil Partnerships The Civil Partnership and Certain Rights and Obligations of Cohabitants Act came into force in 2010 and sought to offer greater protections to same-sex couples. Couples could register their relationship in a process quite similar to marriage, however the rights given to civil partners fell short compared to those of married couples. For example, children of civil partners did not have a legally recognised relationship with both their parents, only the biological one. This meant that in the event of the biological parent’s death, the remaining civil parent did not have legal custody of the child and it could be taken into care. Civil

partnership also did not entitle partners to many of the same social supports and tax advantages that marriage does. The act also defined the home of civil partners as a “shared home”, rather than a “family home”, as is the case for married couples, which gave rise to a number of property law issues.

Marriage Equality In 2011, the coalition government of Fine Gael and the Labour Party convened a constitutional convention with aims to discussion of proposed amendments to Bunreacht na hÉireann. The proposal for a referendum on same-sex marriage was made by the convention, and after being discussed by the Oireachtas it was announce

by Taoiseach Enda Kenny that a referendum on same sex marriage would take place on 22nd May 2015.

The Marriage Equality Bill 2015 contained the proposed wording of the thirty fourth amendment to the constitution, proposing to add the following wording into Article 41 on the Family: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex”. Voters were asked to vote yes or no on the adoption of the wording.

On the day 60.52% of registered voters turned out to polling stations across the country, the highest voter turnout since the Divorce Referendum in 1992, with 62.07% approving the amendment and 37.93% voting against it.

The result of the referendum faced legal challenge, with challengers arguing that the government’s campaigning for a “Yes” result unfairly influenced the outcome of the vote, delaying the enactment of the law. A rejection to this challenge saw the Marriage Equality Act 2015 signed into law by President Higgins on 29 October 2015. Additionally, marriages between same-sex couples which took place abroad are now also recognised in Irish law.

Homelessness: A Right to Housing?

John Brooks Murphy & Lilia Meunier-Mili

Introduction Over the past few years, there has been a significant rise in the level of homelessness throughout the country. According to the Dublin Region Homeless Executive, there were 87 people sleeping rough in the Dublin Region during the winter of 2012, 139 during the winter of 2013 and this number increased yet again to 168 during

the winter of 2014. There is not a one particular cause to homelessness: different factors are involved and can make some individuals more at risk than others. Focus Ireland distinguishes two sets of factors: structural factors, which are social and economic (poverty, unemployment etc.) and individual factors, which are the characteristics of people (behaviour, choices etc.).

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At the start of 2014, in the Dublin region alone there were around 2300 homeless individuals who were availing of homeless accommodation.

At the end of 2015, this figure had increased to over 3300. It is important to note that this figure does not include those who have not accessed accommodation, e.g. those sleeping rough, those that were denied accommodation for whatever reason and those who simply slip through the cracks of the system. Homelessness has been a longstanding problem and yet it seems to always take a backseat to issues that society deems more important or relevant at the time. In this segment we will answer the questions of whether there is a right to housing in Ireland and what are the obligations of the state?

Homelessness and the Law in Ireland The Housing Act 1988 considers a homeless person to be an individual who, in the opinion of the local authority, cannot reasonably occupy accommodation with their own resources. This also extends to whoever would reasonably be expected to live with this individual, i.e. a spouse or children. However, this definition has largely been criticised as being too narrow. Several institutions and official plans have used another definition recommended by a multidisciplinary group of the Eastern health Board which defines homeless people as; “Those who are sleeping on the streets or in other places not intended for night-time accommodation or not providing safe protection from the elements or those whose usual nighttime residence is a public or private shelter, emergency lodging, B&B or such, providing protection from the elements but lacking the other characteristics of a home and/or intended only for a short stay.’

The advantage of this definition is that it takes into account not only the those who are actually homeless but also people who are at risk of being homeless – which emphasizes the importance of prevention.

The law grants more protection where children are concerned. According to the Child Care Act 1991 and the Child and Family Agency Act 2013, if the Child and Family Agency “is satisfied that there is no accommodation available to [a child] which he can reasonably occupy, then, unless the child is received into the care of the [Agency] under the provisions of this Act, the [Agency] shall take such steps as are reasonable to make available suitable accommodation for him.” Thus, there is not an absolute obligation but only a reasonable one. This section only applies to children under the age of 18. If a broader definition were adopted as outlined above, children who are at risk of becoming homeless

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as a result of turning 18 years old, would also be protected by the legislation.

If there is no explicit law regarding a right to housing, what are the obligations of the local authorities? Under the Housing Act of 2009, the Housing Authorities are required to adopt plans to address homelessness. In these plans, the authority must state the measures it will undertake to fight homelessness.

Local authorities are not the only bodies to address homelessness. Indeed, charities and voluntary bodies play an essential role in providing help to homeless people. For instance, the Peter McVerry Trust is a voluntary housing provider, and it also helps to prevent people becoming homeless, which is particularly important for persons leaving prison. Volunteers are also an invaluable resource: in 2013, Focus Ireland had 572 volunteers (including 110 longterm volunteers), which is more than two times more than the full-time workers in Focus Ireland.

Looking forward: Constitutional Protection of a Right to Housing The Irish Constitution does not ensure a right to housing, it merely provides that the dwelling is inviolable. Nevertheless, there has been a push for the introduction of such a right to be incorporated into the Constitution, particularly since the Eighth Report of the Convention on the Constitution concerning Economic, Social and Cultural Rights. 84% of the participants of the Convention agreed to recommend that a right to housing enumerated in the Constitution.

A further step has also been taken as a bill was introduced in 2014 that sought to add to the Constitution a provision which would ensure the Government realised the rights contained in the International Covenant on Economic, Social and Cultural Rights which includes a right to housing.

This bill however was opposed and defeated in May 2015 over fears that such an obligation would be a drain on the State’s resources. Thus, although there is not currently a right to housing in Irish law, nor is it recognised by the courts as an unenumerated right, it is important to realise that there have been movements towards the introduction of such a right.

Fighting homelessness is more than simply helping to put a roof over people’s head during winter. Fighting homelessness is finding long term solutions, especially considering the costs associated with housing people in hostels. It is difficult for an individual, or a family, to live in a precarious situation like this and homelessness prevents people from having a stable future.

This is the reason why there is a need for a constitutionally guaranteed right for housing.

International Investment Arbitration Boun Chun

The legal protection of Foreign Direct Investment (FDI) is guaranteed by a network of more than 2,750 Bilateral Investment Treaties (BITs), Multilateral Investment Treaties, most notably the Energy Charter Treaty and a number of Free Trade Agreements containing chapters on investment protection through the investor-state dispute settlement, such as NAFTA (North American Free Trade Agreement). Although Ireland is a party to the Energy Charter Treaty, it has only ever been a party to one bilateral investment treaty (with the Czech Republic).

expropriation of investments ; 2. Protect investors against arbitrary actions by host states that harm the investors’ legitimate interest ; 3. Prohibition against discriminatory treatment (the host state treat investors no less favourably than it treats its own nationals or the nationals of any third state) ; 4. Right to transfer funds into and out of the host state. Approximately 200 intra-EU BITs are currently in existence. The European Commission has intervened in a number of arbitrations, including Eastern Sugar B.V. (Netherlands) v. The Czech Republic, SCC Case No. 088/2004.

Most of the International Investment Agreements provide foreign investors with a substantive legal protection and direct means for redress against states for breaches of such treaties, usually before the International Centre for the Settlement of Investment Disputes (ICSID) and ad hoc tribunals established pursuant to the United Nations Commission on International Trade Law (UNCITRAL) Rules. The overall number of cases concluded reached 244. Approximately 42% were decided in favour of the State and 31% in favour of the investor. 27% of the cases were settled.

The Place of Ireland in the Context of European Union Free Trade Agreements

BITs as the Mainstay of the International Investment Law Regime’s Development In recent years, the value and significance of arbitration as a dispute resolution mechanism has grown as the number of BITs has increased.

A BIT is a treaty between two states that is designed to promote and reciprocally protect investments made by nationals of one state (the “home” state) in the territory of the other (the “host state”). Each BIT is a product of negotiations between two states. The content and scope of the investment protections differ from BIT to BIT. Nevertheless, there are core protections that are common to most BITs : 1. Protection against the

Ireland has had little exposure to the Investor-State arbitration up to now. But this is likely to change due to the Lisbon Treaty.

Article 207 Treaty of the Framework of the European Union (TFEU) now vests exclusive competence in the EU to conclude tariff and trade agreements with third countries, including in respect of foreign direct investment. This raises the issues in relation to the resolution of future disputes that arises under any treaty negotiated by the EU on behalf of the member states. Who is the proper respondent to a claim, the State or the EU? Who bears financial responsibility for the claim? Who has control of the claim, including the settlement?

Conclusion

However, as a neutral English speaking country with no history of colonisation, Ireland is particularly suited to international arbitration. Many international arbitrations involve disputes between parties from the developing world and multinational corporations. As a result, where preference to a neutral country as the seat of the arbitration is important, Ireland is an ideal choice of venue.

Irish Travellers: An Ethnic Minority?

Heather Flood

As the law stands today, Irish Travellers are considered to be legally distinct from the wider Irish ‘settled’ community. In 2004, the Government’s First National Report under the International Convention on the Elimination of Racial Discrimination (CERD), stated that ‘the Government’s view is that Travellers do not constitute a distinct group from the population as a whole in terms of race, colour, descent or

national or ethnic origin’. Many interest groups for Travellers argue that Irish Travellers should be recognised as a separate ethnic group by the Irish government. It is argued by these groups that ethnic minority status would bolster discrimination claims and allow for further recognition and respect of Traveller tradition, culture and needs.

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The Irish Human Right Commission has expressed concerns that the Traveller Community may not be able to rely upon the EU Race Directive or the CERD for protection against discrimination on ethnic grounds. Since the government does not recognise Travellers as ethnically distinct from the rest of the indigenous Irish population, Travellers may be barred from claiming that they are being discriminated against due to their ethnicity in Ireland.

Discrimination against Travellers has been specifically prohibited in certain circumstances.

The Equal Status Acts prohibit discrimination against Travellers in the provision of goods and services, the disposal of property and access to education, while the Employment Equality Acts prohibit discrimination in employment. In these acts, the government chose to specifically name the Travelling Community rather than allowing them to fall under the category which prohibits discrimination due to a person’s “ethnic origin”.

The government stated in 2009 that this did not place the Travelling community at a disadvantage as compared to ethnic minorities within the state, and in fact guarantees their protection explicitly.

Siobhan Cummiskey, managing solicitor of the Irish Traveller Movement Independent Law Centre (2009-2012), however, suggests that the decision to specifically protect Irish Travellers in certain acts, rather than designating them as an ethnic minority, means that the Government is able to cherry pick in what circumstances Travellers are to be protected. Cummiskey argues that if Travellers were instead recognised as an ethnic minority they would receive much broader protections under current legislation and be more likely to be protected by any future legislation.

Travellers have been recognised as ethnic minorities in both the UK in 2000, and Northern Ireland in 1997. Issue has been raised over an inequality in human rights for Travellers between Northern Ireland and the Republic of Ireland.

According to the Good Friday Agreement, citizens of each state are guaranteed to have equivalent human rights, yet there is a clear disparity in treatment of Travellers between the two states. In the UK case, a number of Irish Travellers complained of being refused service

in various public houses due to their ethnicity.

Judge Goldstein held that Irish Travellers constituted a separate ethnic group to the rest of the indigenous Irish population. He said that this was because they possess a long shared history which distinguishes them from other groups, and that they also have a distinct cultural tradition of their own. The European Framework Convention on National Minorities does not contain a definition of what constitutes an ethnic minority, but does refer to maintaining and developing the culture and identity of members of national minorities, including their religion, language, traditions and cultural heritage. Pavee Point, the Irish Traveller and Roma Centre, argue that Travellers can show clearly a distinctive culture, tradition and customs, and are seen by themselves and by others as different. As part of the argument that Irish Travellers are ethnically different from other indigenous Irish people, proponents tend to note their distinct language Cant, as well as their Nomadism, among other things.

Two UN Committees, the UN Human Rights Committee in 2008 and most recently the UN Committee on the Elimination of Racial Discrimination in 2011, have recommended that Irish Travellers be granted ethnic minority status. Further, in October 2012, the UN High Commissioner for Human Rights, Navanethem Pillay, stated that ‘the official recognition by a State of a minority group can be… instrumental in securing all human rights of all its members; it can also contribute to the stability of a State.

[The Office Of The High Commissioner For Human Rights] supports all efforts that would result in a higher protection of the human rights of Irish Travellers in Ireland…’. In 2011, Alan Shatter, then Minister for Justice and Equality, announced that the government was ‘seriously considering’ carrying out this recommendation.

Recently, the Oireachtas Committee on Justice also recommended that Travellers should be legally recognised as an ethnic minority in a report dated April 2014. To date however, this recommendation has not resulted in any movements towards granting ethnic minority status to Irish Travellers within the government.

Politicians, Posters and Polling: The Law Surrounding Elections to Dáil Éireann Conor Keegan

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Elections occur rather sporadically and a lot less frequently in Ireland than many other countries.

Aside from general elections, which are held on average every four to five years, local and

European elections are always held on the same day and take place once every five years. In between (or indeed on the same day) there may be referendums which are called on matters such

as changes to the Constitution of Ireland or to ratify a European Union treaty. In this article, I will examine Irish electoral law and I will look at how it deals with the various facets of electioneering: parties, campaigns, posters and issues around the timing of the election.

onto which posters are to be put must be asked for their permission before the poster is placed on it. After polling day, posters must be removed within seven days, with a ¤150 fine for each poster left up after this time. If this fine is not paid, a summons to the District Court will follow.

The most common method of precipitating an election in Ireland is for the Taoiseach to call the date for the election as Dáil Éireann approaches the end of its five year term. Most Irish general elections have been called in this calculated way.

The decision of when to hold the election rests with the Government, which means the Taoiseach has the final say. Therefore, almost everyone else in the country must second guess the election date up to the point when it is actually announced. The Taoiseach travels to Áras an Uachtarain (the official residence of the President of Ireland) and asks the President to dissolve Dáil Eireann, as the Constitution mandates that the Dáil term can only be a maximum of five years in length.

All citizens of Ireland over the age of 18 can vote in elections. However, you must first place your name and address on the Register of Electors, which is updated and maintained yearly. Postal voting is permitted for members of the Gardaí, full time members of the Defence Forces, members of the Irish diplomatic service stationed abroad and prisoners. On election day, polling stations open at 7am and remain open until 10pm that night. No signs or posters of any political parties are permitted in the polling station or immediately outside it.

The other way in which elections come about is for the Government to lose a vote of confidence in Dáil Eireann. In the most straightforward scenario, a member of the Dáil can table a motion of no confidence in the Government.

Votes of confidence can also consist of votes on important legislation (such as for example, the annual budget) or a normal vote can become a confidence issue if the Taoiseach or some member of the Government stakes confidence in the Government on the outcome of that vote.

If the Government loses a vote of no confidence, the Taoiseach must seek a dissolution of Dáil Éireann from the President.

In this scenario, the President of Ireland has two options: he can dissolve the Dáil, which will then lead to an election thirty days later or he can look to form a new administration from the remaining parties in the Dáil. This has only occurred once in Irish history, when Labour crossed the floor of the Dáil to create the Rainbow Coalition in 1994, having left Government with Fianna Fáil. Therefore, in almost all circumstances, the Dáil is dissolved and an election is called.

In Irish electoral history, defeats on issues of confidence are rare. A famous example occurred in February 1982, when Limerick TD Jim Kemmy voted against the Government as they tried to introduce a budget which would put VAT on children’s shoes.

When a Dáil is dissolved, the “election campaign” has officially begun. A general election must be held within 30 days of the dissolution of the Dáil.

During this time, manifestos are published, party rallies are held and policies are explained to the public, as the democratic process gains speed.

This is the period when that peculiarly Irish phenomenon, the election poster, gets its time in the sun. The owner of poles or other structures

Ireland is divided into 43 constituencies, each of which have three, four or five seats to be won at each election. The Constitution mandates the number of voters per seat and the constituency boundaries are worked out accordingly.

Constituency redraws take place at regular intervals, and are often contentious affairs for TDs faced with losing some of their electorate.

Ireland’s voting system is called proportional representation by means of the single transferable vote (PR-STV). It involves the voter ranking their candidates in order of preference, with their favourite being number 1, second favourite number 2 etc. You do not have to mark a number beside any more than one candidate if you wish your vote to be valid, but if you make any mark other than a number your vote will be spoiled. When polls close, the ballot boxes are brought to a count centre, and counting begins the following morning. Votes are sorted into first preference votes for all candidates, and then a total number of votes is taken. Then the quota is worked out.

Quota =

Number of Votes (20,000) _______________________ = Quota + 1 (4,001) Number of Seats + 1 (5)

When the first preferences are counted, any candidate reaching the quota is elected. If no candidate has reached the quota, the candidate with the least first preferences is eliminated and his second preferences added to the other candidate votes. This process continues through voters preferences until all candidates have reached the quota or until there are as many candidates left as there are seats in that constituency.

Election expenses in Ireland are highly regulated by the Electoral Act 1997. This limits the amounts which candidates can spend on their campaigns.

Interestingly, it also allows candidates to recoup up to ¤8,700 of their expenses, provided they reach one-quarter of the quota in their

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constituency. The 1997 Act also makes political parties account for every cent of expenditure

during election campaigns, and regulates how much candidates can receive in donations.

Protecting Children: The Requirement to Report Abuse Rachel Gaffney

Following the shocking details of the Ryan Report, there was an outcry for legislation to be introduced to better protect children and encourage a culture of reporting potential risks of abuse or neglect. The Children First Guidelines have been developed since 1999 and major footing was granted to implementing these as law came from the Ryan Report Implementation Plan of 2009.

The Children First Act 2015 further expanded and elaborated on the law in Ireland in relation to the mandatory reporting of crimes against children.

The Act introduced a legal requirement to report child protection concerns to the Child and Family Agency (TUSLA) for persons in key positions of responsibility relating to the supervision of children or vulnerable persons.

A fundamental aspect of this legislation signed into law in November 2015 is that it gives statutory footing to the Children First Interdepartmental Group. This group is to have a representative from each governmental department who will review the implementation of this legislation and make an annual report to the Minister for Children and Youth Affairs. The Act places a requirement on such mandated persons defined in it to assist the Agency in a child protection risk assessment if requested to do so. Under the Act, the National Guidance for the Protection and Welfare of Children (2011) continues to be the main reference for all citizens relating to the reporting of child protection concerns.

The Children First Act also introduces a requirement for organisations that provide services to children to keep them safe and to produce a “Child Safeguarding Statement”.

Each organisation must carry out an internal risk assessment in relation to the protection of children and the methods they would use to address any identified risks will compose their safeguarding statement.

The underlying aim of this Act is to raise awareness of child abuse and neglect. It is hoped that by setting a procedure for reporting and categorising what is required in a report and who is legally obliged to make such a report, the quality of reports made to the Agency will drastically improve.

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The Children First Act is the latest addition to a suite of child protection legislation introduced in Ireland. Included in this suite are also the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The Criminal Justice Act 2012 makes reporting of crimes committed against children or vulnerable persons mandatory, however it places no sanctions on victims of such crimes if they do not report them.

The National Vetting Bureau Act 2012 provides a legislative basis for the vetting of persons seeking employment relating to children or vulnerable persons.

It is important to note that there are no sanctions included in the Children First Bill for failure to comply or for a failure to report as a mandated person. In the early stages of the Bill’s drafting a sentence of up to five year imprisonment for failure to comply was included but this was subsequently removed. The abuse survivors support group One in Four welcomed the introduction of this legislation but were concerned about the lack of sanctions in place for professionals who do not adhere to the bill and raised concerns regarding a lack of additional resources to support organisations to develop good child protection practices.

Australia, the USA and Ireland all have mandatory reporting regimes in place for the purpose of child protection. When the US first introduced their laws on mandatory reporting, they were aimed specifically at members of the medical profession, requiring them to report children’s injuries that were unlikely to have been sustained accidentally. This was a legal exception to doctorpatient confidentiality and action could not be taken for a breach of this professional duty.

More recent mandatory reporting laws make reference to a “clergy-penitent privilege”- that is a confidential pastoral communication. Different states have different approaches as to whether this privilege is to be upheld or is expressly waivered in instances of child abuse. In states where it is not expressly waivered it is clear that such a privilege will be interpreted narrowly in the context of child abuse.

In Australia, seven out of eight states and territories have mandatory reporting legislation.

These all vary in scope and penalty. All refer to

past and current abuse and some states require that suspected neglect must be reported. New South Wales expressly protects those reporting in good faith from defamation actions and breach of professional ethics actions.

The UK does not have any mandatory reporting of child abuse in place. In light of public scandals regarding Jimmy Savile and Stuart Hall and an estimated one in five children in the UK having suffered serious physical or sexual abuse or severe physical or emotional neglect, it would seem that a genuine argument for the introduction of mandatory reporting could be made.

The Church have been slow to respond to the suite of child protection legislation. With no sanctions in place for a failure to comply, it is

questionable whether members of the clergy will actually be prepared to break the seal of the Confessional. However, in the Vatican’s response to the Coyne Report of 2010 Pope Benedict called on the Bishops of Ireland to cooperate with the civil authorities, and reaffirmed the Holy See’s commitment to constructive dialogue and cooperation with the Irish Government to ensure that the Church and society will always be safe for children and young people.

Perhaps this urging from the Holy See will encourage members of the clergy to abide by the mandatory reporting legislation. Perhaps the confessional privilege will be weakened and the trust between priest and parishioner too. Such a result would likely be felt amongst the members of the Church and so it remains to be seen whether the clergy are willing to break their duty to provide confessional privilege.

Protecting Your Data: The EU and You Clare McKeon

Introduction It is not an everyday occurrence that a law graduate in their mid-20s decides to take on Silicon Valley and disrupt the business practices of some of the world’s biggest tech companies, while simultaneously furthering the diplomatic tension between the U.S. and Europe over privacy laws. This is what Max Schrems from Austria did.

Since Edward Snowden’s revelations regarding online surveillance by U.S. Security Services the transatlantic digital relationship has increasingly been under pressure.

The data that fuels the everyday digital life for millions of Europeans - e.g. Facebook posts, Snapchat messages and cloud computing services - has been allowed to be exported to data centres in the U.S., where it can be stored, processed and re-exported, without the formal and stricter regulatory privacy protections implemented back in Europe. The privacy laws in the U.S. are viewed by critics as weaker than in Europe. The shipment of Europeans’ data to the U.S. has been allowed under the auspices of the Safe Harbour Agreement. However, the Court of Justice of the European Union (CJEU) declared the Safe Harbour pact invalid on 6th October 2015. Consequently, leaving many companies scrambling to find a new legal basis for transferring European citizens’ data to the U.S. The significance of the case was exemplified

by Edward Snowden’s tweet after the ruling:

‘Congratulations, Max Schrems. You’ve changed the world for the better’.

What was the Safe Harbour Agreement?

Dating back to 2000, the data framework, decided by the European Commission (the executive arm of the European Union), allowed U.S.-based companies to store personal data on European citizens - e.g., Tweets, Gmail messages, credit card details, or payroll information - on servers in data centres based in the U.S. without violating the strict data protections laws) in Europe. This was enabled by companies pledging to abide by a series of EU principles which were to be enforced by the U.S. Federal Trade Commission. These principles concerned how they would keep European Citizen’s personal data secure, and give individuals the right to opt out of having their data sent to third parties.

Around 4,400 companies were certified under the Safe Harbour programme as of 2015. The agreement underpinned billions of dollars of trade in the online advertising business, as well as more mundane tasks such as storing HR documents on European employees.

Background to the Case In 2013 Max Schrems, an Austrian law graduate and privacy activist, lodged a complaint to the Irish Data Protection Commissioner (DPC) over Facebook’s compliance with EU data-privacy rules. The complaint was lodged to the Irish DPC 24

as Facebook has their European headquarters based in Ireland. Mr Schrems claimed that the allegations by former U.S. National Security Agency (NSA) contractor Edward Snowden revealed that Facebook was not providing sufficient protection to its users’ data stored in the U.S. as the data was subject to mass indiscriminate surveillance by the intelligence services.

However, the Irish DPC rejected the complaint, citing the fact that the data transfers were subject to Facebook’s Safe Harbour certificate, and given that such legal basis was approved by the European Commission, the DPC was bound

by Safe Harbour and could not investigate.

Subsequently, Mr Schrems brought judicial review proceedings against the DPC. The Irish High Court sought clarification and adjourned the hearing in order to ask the CJEU whether the DPC had the power to ignore the EU-wide Safe Harbour Agreement and investigate.

Why did the CJEU Declare Safe Harbour as invalid?

The CJEU, after the referral from the Irish High Court, ruled that the European Commission Decision underpinning Safe Harbour (2000/520/ EC) was invalid. There were two technical grounds for such a decision: 1. The European Commission Decision (2000/520/EC) failed to sufficiently examine the data protection standards in the U.S. to ensure there was a level of safety of fundamental rights equivalent to the guarantees in the EU. 2. The European Commission Decision possibly deprived European citizens of their rights of access to national Data Protection Authorities (DPA) who have the power to exercise their independent oversight of data controllers in their jurisdiction.

The Court ruled that national data regulators in the EU can override the ‘Safe Harbour’ pact as it violates the privacy rights of European citizens by exposing them to allegedly indiscriminate surveillance by the U.S. government.

Key Points from the CJEU Judgement The CJEU made two findings that will have immediate legal consequences: 1. The European Commission’s decision (Decision 2000/520) that incorporates the Safe Harbour agreement into European law is invalid.

2. National DPA/DPCs in Europe have the power to examine citizens complaints that their data protection rights are not adequately protected in a country outside the EU even if the Commission has already made a decision 25

that such a third country does indeed provide adequate protection.

Another key point which was made by the CJEU is the confirmation that the right to private life is categorised as a ‘fundamental’ right. Furthermore, the right to the protection of personal data is ‘guaranteed’ by the Charter of Fundamental Rights of the European Union and the Data Protection Directive (95/46/EC).

Therefore, if a third country’s level of protection is not equivalent to European standards then National DPA/DPC must find that the country has failed to provide the adequate safeguards.

Additionally, the CJEU held that the Irish DPC had the right to investigate the claim against Facebook’s data privacy protection and it must do so.

Consequences of and Opinions on the CJEU Judgement The Court’s decision does not order an immediate end to the personal-data transfers to the U.S. The ruling only found Safe Harbour - just one of a number of different legal processes to lawfully transfer data from the EU to the U.S. - as invalid. Importantly, however, the court found that national regulators, like the Irish DPC, have the right to investigate companies who use Safe Harbour if complaints are made. Furthermore, they have the power to suspend data-transfer to the U.S. if a Safe Harbour company is found not to have the adequate protection.

This creates new legal risks and uncertainties for certain companies as any company processing data in Europe and transferring it to the U.S. will no longer be able to rely on the safe harbor agreement to do so. The decision will be costly for such companies, who will have to find a new basis on which to make data transfers before data protection regulators start levying fines or ordering the suspension of any such data flows.

Many large technology companies claim they have set up other legal mechanisms in order to allow their businesses to operate unhindered by the ruling. Alphabet’s Google is expanding its data centre in Belgium and is building another in the Netherlands to complement their existing ones in Finland and Ireland. The ruling is likely to accelerate a shift that was already under way, with U.S. companies housing more European data locally. But SMEs are likely to struggle to build their own European data centres or pay other companies for such service.

It is important to note that only 4,400 U.S. companies were Safe Harbour certified; therefore, many European companies already legally transfer personal data to the U.S. without relying on the Safe Harbour agreement. Thus, companies affected by the CJEU’s decision must

look to alternative legal mechanisms that other companies have been using for data transfers, such Model Contracts, Binding Corporate Rules, and Data Subjects’ Consent. Another important point is that the CJEU ruling places Safe Harbour certified U.S. companies in the same position as companies in many other countries in the world.

The European Commission has only certified 10 countries as providing sufficient legal protection for EU citizen’s data protection rights. Therefore, if a European company is transferring Europeans’ personal data to a company in Australia then the European company must have a legal basis for such transfer as the Safe Harbour pact only applies to the U.S. Privacy activists welcomed the decision as they claimed companies were not complying with the Safe Harbour rules long before Snowden’s revelations. Furthermore, it is claimed that forcing more data to be stored and processed in Europe could have strong commercial and political consequences for the EU, given that the online data storage business is likely to be worth $50100 billion over the next four years. Mr Schrems declared after the ruling: “The message is clear that mass surveillance isn’t possible and against fundamental rights in Europe.”

However, trade groups claim that the suspension of Safe Harbour will negatively impact Europe’s economy, especially hurting SMEs and their customers. Furthermore, they claim that new digital startups will be put off from expanding into Europe. They cite AirBnB as an example of a company who may have expanded in Asia first instead of Europe if the CJEU’s ruling had been delivered while the company was in its early years of growth. Additionally, Washington officials asserted that the PRISM programme, which was cited in the Advocate General’s opinion to the CJEU, is aimed at specific foreign intelligence targets and does not process data indiscriminately.

Back to Ireland The case returned to the Irish High Court on the 20th October 2015 which made a final ruling on Mr Schrems’ challenge to the DPC’s 2013 decision not to investigate his complaint against Facebook transferring his personal data to the U.S. The court upheld Mr Schrems’ challenge. Consequently, the DPC must now begin to investigate, taking into consideration

the CJEU’s ruling, into whether Facebook’s EU to U.S, data transfers comply with EU data privacy requirements. As of December 2015, Mr Schrems has filed another complaint to the Irish DPC as well as to the German and Belgian DPA. Furthermore, he has threatened the Irish DPC with criminal action if she fails to fully investigate his complaint against Facebook promptly.

Safe Harbour 2.0 and Future Tends Washington and Brussels had already been negotiating an alternative to Safe Harbour prior to Schrems but this new ruling has increased the pressure on both parties to find a viable alternative. Tension points remain over the scope of exceptions to allow the U.S. government to process Europeans’ data. Any new Safe Harbourstyle decision will need to have more robust security and transfer protocols than the previous one. It would also need to provide EU citizens with greater rights of recourse to the U.S. courts.

Many claim any new agreement could be under the auspices of the Transatlantic Trade and Investment Partnership (TTIP) which is currently being finalised between the U.S. and Europe.

Along with other landmark rulings, such as the data retention and right to be forgotten cases, the Schrems decision provides the background to an intensified discussion on data protection in Europe. This discussion has come at a critical moment as the revised data protection regime, the General Data Protection Regulation, is being finalised by the European Union institutions which would substantially revise the existing framework. The Directive is poised to provide: greater cooperation between national DPA in the EU; more consistency in data protection across the EU; to require companies to tell EU authorise if a data breach occurs within 72 hours; and provisions for fining companies if they do not comply. The most critical change to be brought about by the GDPR is that jurisdiction is not a physical or geographical barrier – jurisdiction will be measured digitally, meaning that companies outside of the EU will be affected by these new regulations if they collect data that belongs to an EU citizen.

This is an exciting time for data protection regulation in Europe with many changes taking place given the increase in public concern over their privacy rights in the digital age.

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Religious Ethos: is it an Employee Obligation?

Clare McKeon

Introduction Although in 2016 Ireland is hailed as a multicultural society, the Catholic Church still controls 96% of State-funded primary schools and religious-controlled schools and medical institutions are allowed to discriminate in order to protect their religious ethos. This not only affects equal access to education for children seeking admission to such denominational schools but also the right of prospective employees to not be discriminated against based on their religious beliefs or non-beliefs. It is not surprising that the current educational system in Ireland has come under recent scrutiny both nationally and internationally; with Ireland being identified as facilitating the breaching of the human rights of atheists and minority faith groups.

Religious Discrimination in Employment Every individual in Ireland has a human right not to be discriminated against and to be treated equally when it comes to employment in Ireland.

There are nine specific grounds upon which equality is protected, which include: religion, civil status, family status and sexual orientation. It is important to highlight the latter three as they are often intertwined with religious teachings and beliefs. Therefore, individuals are entitled to equal treatment in employment no matter what their religious beliefs are or even if they do not hold any religious beliefs.

Discrimination can be defined as: the treatment of a person in a less favourable way than another person, in a comparable situation, on any of the nine grounds. Discrimination is unlawful in all aspects of work, including recruitment, promotion, pay, conditions of employment, training and experience.

If an individual believes they are being discriminated against in the workplace because of their religious beliefs, civil status, family status, sexual orientation or any of the remaining five grounds then such an individual can bring a complaint under the Employment Equality Acts 1998-2011 within six months of the date of the last act of discrimination. This is done by filling out a form, on the newly created, Workplace Relations Commission’s website.

However, there are some exemptions that apply to the Employment Equality Acts. Section 37 of the Employment Equality Act 1998-2011 is the most notable given the increased scrutiny of the religious discrimination being perpetrated in denominational institutions in Ireland.

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Exemptions in the Education and Health Sectors Irish Constitution: Article 40(1): All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

Article 44(2)(3): The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

The prohibition against discrimination in Article 44(2)(3) is arguably more unambiguous than the guarantee of equality under Article 40(1).

Furthermore, the clarity of Article 44(2)(3) emphasises the importance of not discriminating on the grounds of religion. However, such an explicit prohibition on religious discrimination has not been equally reflected in Irish case law nor Irish legislation; most specifically with the enactment of the Employment Equality Act 1998. Even before the 1998 Act, the Irish courts took into account the religious ethos of an organisation in discrimination cases; in Flynn v Power [1985] an unmarried teacher was dismissed from a covenant school because she became pregnant by her partner who was married to another woman. The court held it was reasonable to dismiss her in order to not undermine the religious ethos of the school.

Subsequently, this lawful discrimination was reinforced by Section 37(1) Act 1998; which provided an exemption for religious institutions from the prohibition of religious discrimination in the Irish Constitution as well as from the European Employment Equality Directive 2000/78. Thereby, allowing such religiouscontrolled institutions to lawfully discriminate employees and prospective employees in order to maintain the religious ethos of the institution concerned.

Section 37(1): A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—

(a) it gives more favourable treatment,

on the religion ground, to an employee oN

a prospective employee over that person

where it is reasonable to do so in order to

maintain the religious ethos of the

institution, or

(b) it takes action which is reasonably

necessary to prevent an employee or

a prospective employee from

undermining the religious ethos of the institution.

Despite a challenge to Section 37(1), the Irish Supreme Court upheld the provision as it believed it was striking a fair balance between the competing rights of freedom of religion and the right of employees to be protected from discrimination. However, the current government’s Programme for Government [20112016] recognised that such an asserted balance is not actually fair in reality and proposed to ensure “people of non-faith or minority religious backgrounds and publicly identified LGBT people should not be deterred from training or taking up employment as teachers in the State”.

Recent Changes in Ireland — does it go far enough?

The Equality (Miscellaneous Provisions) Act 2015 was signed into law on the 12th December 2015 to amend Section 37(1) of the Employment Equality Act 1998-2011. Therefore, State-funded schools and hospitals under religious patronage, as employers, can no longer discriminate against individuals on the basis of their sexual orientation, civil status or family status in order to uphold the institution’s ethos. However, the 2015 Act does not address discrimination on grounds of religion; therefore, atheists and minority faith groups can still be lawfully discriminated against by such institutions despite recommendations presented to the Government that the same protection should be afforded to atheists and minorityfaith individuals as now afforded to the LGBT community. Additionally, this amendment only covers State-funded religious-run institutions and not privately funded ones who are still legally

allowed to discriminate on the aforementioned grounds.

International Criticism and Europe The fact that the Equality (Miscellaneous Provisions) Act 2015 does not address the religious discrimination that is being allowed to persist against non-religious or minority faith citizens by such denominational schools and medical institutions, in their capacity as employers, has been criticised by the UN Human Rights Committee, the EU and the Human Rights and Equality Commission.

Furthermore, it is important to note that Article 4 of the European Framework Directive for Equal Treatment in Employment and Occupation 2000 makes special provisions for certain employers which have an ethos based on religion or belief. The Directive stipulates that such a difference in treatment will not be considered as discriminatory if there is a “a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”. It stipulates that discrimination on any other ground is not permitted. However, critics believe that Ireland is likely to not be in compliance with Article 4 by reason of the breadth of Section 37(1). If it permits different treatment on grounds other than those allowed by the Directive (such as sexual orientation) Ireland could be in breach of its binding European obligations.

The topic of denominational schools and medical institutions has received significant media attention over the previous months with regard to equal access for children in the admission procedure. Therefore, the next government is likely to be called on to address the international criticism aforementioned.

Surrogacy in Ireland

Roryann Sweeney and Eve Kennedy Introduction Surrogacy in Ireland is a major area of contention, which has resulted in a gap in the law regarding this issue. There is an obvious lack of appetite in the legislature to deal with this technical and complicated matter. While surrogacy was extensively dealt with in the Children and Family Relationships Bill 2014, when passed in 2015, the Act wholly omitted any mention of surrogacy. The lack of legislation on the issue has led to a lot of legal confusion in the area.

The use of surrogacy in Ireland is by no means

a new phenomenon. In 2005, the commission on Assisted Human Reproduction (AHR) issued a report highlighting the fact that the practice of AHR is active in Ireland, despite the lack of legislative control. The Commission recommended that a legislative framework regulating AHR be introduced.

Recent Difficulties in the Law Regarding Surrogacy In 2014 the Supreme Court’s decision in M.R. v Attorney General highlighted the position of 28

surrogacy in Ireland. Here, the Supreme Court overturned a decision of the High Court which found that the applicant could be registered as the mother, as opposed to her sister who had given birth to the twins as a surrogate. The High Court decision, Justice Denham noted, had been inconsistent with the law which stated that the registered mother could only ever be the woman who gave birth to the child. The Supreme Court held that this issue was not for the judiciary to decide upon, and that it was up to the Oireachtas to change the law as it stood if they so wished, being a public policy matter.

The 2015 case of G v Department of Social Protection highlights the ongoing stagnation in Irish law concerning surrogacy and the lack of legislative representation of the genetic mother in a surrogacy arrangement. In this case, the appellant was the genetic mother and primary carer of a child born through surrogacy. She sought to avail of maternity benefits following the birth but did not qualify, as she had not been pregnant nor had she adopted the child. She asserted that she had been discriminated against by virtue of the respondent’s refusal to grant her a payment equivalent to those benefits. The case turns on the correct interpretation of the relevant anti-discrimination legislation. She argued that she was a mother with a newborn child to care for and invoked her rights under Article 41 of the Constitution, the obligation of the State to protect the family, the importance of the life of women within the home and the obligation of the State to ensure that mothers are not obliged by economic necessity to work outside the home.

The respondent argued in the High Court, that as a Government department, the respondent is bound by the Social Welfare Acts as enacted.

It submitted that Irish law, as reflected in the legislation, subjects adoptive mothers and surrogacy-aided mothers to different processes.

The former has a clear statutory regime nationally and internationally, while the Oireachtas has made a choice not to make provision in relation to surrogacy. The court ruled that it was bound by the lack of legislative provision for surrogate mothers in this regard, again stating that this was a matter of public policy for the legislature to decide upon.

The appellant was unable to avail of maternity benefit due to the nature in which she had a child despite facing the same realities as new mothers and adoptive mothers. Therefore it appears that the courts cannot progress without legislative guidance, forcing a conclusion that reform in the legal context of surrogacy is the only way forward.

Reform in the Law governing Surrogacy It cannot be over-stated that reform and development in the law relating to surrogacy in Ireland is required. Surrogacy, as a contentious 29

area of the law, has encountered problems in other European jurisdictions. Countries with otherwise liberal social regimes ban the use of surrogacy, such as France, Germany, Portugal and Spain. Laura Bertilotti in the New York University Journal of International Law argues that “prohibition is justified by different moral and ethical concerns; to prevent children from becoming commodities traded as merchandise between infertile couples and surrogate mothers, to protect the interest of children who are psychologically at risk in such transactions, and to prevent the exploitations of surrogate mothers who must relinquish parental rights to the child after giving birth”. By contrast, the UK permits surrogacy under the Human Fertilisation and Embryology Act 1990, provided that there is no financial transaction and the genetic parents are married, aged over 18, domiciled in the UK, with at least one of the parents being the child’s genetic parent. The Act provides that the commissioning parents are the legal parents, rather than the surrogate.

This UK Act provides clarification for the family unit within the surrogacy relationship.

The General Scheme of Children and Family Relationships Bill 2014 proposed to follow in the footsteps of its British counterpart. It set the minimum age of an acting surrogate at 21 and prohibited advertising as a surrogate or payment for acting as one (aside from medical expenses).

A surrogate would have to waive their legal relationship with the child in order for the genetic mother to gain said legal status. This consent based element in surrogacy arrangements mirrors developments in European jurisprudence following the Hague Convention on Inter-Country adoption.

Fundamentally, the lack of legislation for surrogacy sits uncomfortably with the fervent emphasis on the role of the family in the Irish constitution. As the definition of ‘family’ becomes broader it is imperative that the legislator keeps pace with reality. The case of G v Department of Social Protection highlights the innate inequality and disadvantaged position that women who avail of a surrogacy arrangement are placed in.

This development, coupled with the decision in M.R. v Attorney General has resulted in a wholly undesirable position in law for the genetic mother in a surrogacy arrangement. Furthermore issues of identity for the children of surrogacy arrangements are raised. Ireland, with its emphasis on the family and appreciation for their rights must do more to ensure that all families, regardless of make-up, are accounted for.

As the law stands today, the birth mother and genetic father are listed as the parents on any birth certificate, excluding the genetic mother.

This presents significant problems for women in Ireland who cannot have children of their own and opt to use surrogacy. Overall, it appears that the law on surrogacy will remain stagnated until

legislative intervention occurs. The courts have firmly said that they do not have the authority to compensate for the current gap in the law.

As Justice Denham notes, any law on surrogacy

‘creates complex relationships and has a deep social content. It is thus quintessentially a matter for the Oireachtas’.

The Accidental Legalisation of Drugs Hannah Cowley

Accidental Legalisation In March of 2015, a host of ‘class A’ drugs were legalised for just over a day. The loophole arose from a case concerning the prosecution of Stanislav Bederey for the possession of methylecathinone, otherwise known as ‘cat’, an illegal substance under a 2010 list of controlled drugs. This legal loophole meant that you could not be arrested for buying certain drugs nor having them in your possession. The supply and sale however, still remained illegal.

Bederey brought a case to the High Court seeking to have his conviction thrown out on the basis that the regulations in question were unconstitutional. Originally, the High Court ruled in favour of the State and proceeded with the conviction but this was subsequently overturned by the Court of Appeal.

This loophole was created when the Court of Appeal found part of the Misuse of Drugs Act 1977 to be unconstitutional. They held that section 2(2) of the Act gave the Government a law making power outside of their normal realm of responsibility which was in fact reserved to the Oireachtas. Due to the fact that new additions to the list of controlled substances in the legislation did not go through the ordinary legislative process, but rather were added on by a statutory instrument of the Government, certain drugs currently prohibited by the Act were in fact not illegal.

This prompted the passing of emergency legislation which had the effect of making methylecathinone, ecstasy and ‘headshop drugs’ illegal. Although the legislation was prepared prior to the ruling, in anticipation of a finding of unconstitutionality, it had to be rushed through the system in order to get Ireland out of the grey area they found themselves in. While the normal legislative process involves five stages and can take months to pass into law, this Bill was passed through all stages of the Dáil and Seanad within 24 hours in a bid to protect public health and justice.

There was a concern that this ruling could potentially throw previous convictions into

question, namely those which were decided under the Misuse of Drugs Act 1977. However, in the months following the decision, very few knock on effects were noticed. The ruling only affected ‘newer’ drugs, which were added to the legislation by successive governments, with over 125 substances not affected which always remained illegal, including cannabis, heroin and cocaine. In reality, the ruling could only have affected ongoing cases concerning the legislation and not those which had already been decided. In order to have any strength in challenging a conviction, the person in question would have had to have raised the issue of unconstitutionality at their original trial. The main effect was that anyone who committed an offence under the Misuse of Drugs Act 1977 prior to the enactment of the emergency legislation but had not been tried before it was passed could not be prosecuted for that offence. This is due to the fact that under the Constitution, any law which creates a criminal offence may not be retrospective in nature, in that it cannot seek to charge someone with a criminal offence for doing something which was perfectly legal to do at the time. Thus, only a very small number of cases were affected.

General Information As of now, banned substances are listed under the Misuse of Drugs Regulations 1988. This is backed up by the Criminal Justice (Psychoactive Substances) Act 2010 whereby if a substance is not explicitly mentioned above but has psychoactive effects, essentially anything which affects the nervous system and alters brain function, it is prohibited under this Act. The significance of a drug conviction beyond a fine or prison sentence is that it could prevent a person from travelling and obtaining visas, gaining employment or training and even insurance.

Under the Misuse of Drugs Acts the possession of cannabis is an offence. If you are caught in possession of cannabis and the court decides the drug was for personal use and not for sale or distribution and this was a first offence, the court may impose a fine of up to ¤1,270. However, subsequent offences raise the bar and can result in up to a three year prison sentence or a fine 30

of over ¤2,540 or both. Other controlled drugs are penalised a lot heavier with a summary conviction for possession possibly resulting in a prison term of up to twelve months, even for a first time offender. Conviction on indictment can result in a prison sentence of up to seven years.

Intent to sell controlled drugs can attract a prison sentence anywhere from a few years to a life sentence. It is essential to note that money does not have to exchange hands for the court to be satisfied that drugs were intended for sale. Where the market value of the drugs is above ¤13,000,

the convicted person is liable for a minimum ten year sentence.

Under the Misuse of Drugs Act Gardaí have the power to search you and your vehicle without a warrant if they suspect you are in possession of drugs. All citizens have the right to ask why they have been stopped, ask for a record of the search following the examination and if detained, you have a right to know exactly why and to obtain legal advice in private.

The Law of Defamation Anne Guerin and Victoria Sweetnam

Traditionally in Ireland, defamation was the publication of a false statement which caused a person to be subject to ridicule, however now a claim for defamation in Ireland can arise through a statement which tends to lower the reputation, or which creates a negative image of the subject in the eyes of the reasonable person.

Defamation is one of the most serious dangers facing journalists and publishers today; there is a constant balancing act between a person’s ability to express themselves and the right of a person not to have their reputation defamed or defaced by another. Since the introduction of the Defamation Act 2009, the law in this area has changed significantly. There are now a number of new and innovative remedies and defences and the Act provides greater clarity to both plaintiffs and defendants on what does and does not constitute defamation.

There are three elements that must be shown in order to successfully bring a claim of defamation against an individual. You must show that there has been publication of a statement, you must demonstrate that the published statement has a defamatory effect and you must be able to show that it is possible to identify the individual claiming to be defamed from that published, defamatory statement.

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Firstly publication means that the statement must be communicated to a third party. There can be no damage to an individual’s reputation if the public is not aware of the defamatory statement.

This means for example, that if a letter containing an extremely slanderous statement is sent directly to the person to whom the slanderous statement is addressed and it is read by no one else, then no publication has occurred and there is therefore no action in defamaiton. However, publication to just one other person is sufficient provided it was intentional or reasonably foreseeable that publication to the third party would occur. Secondly, the statement complained

of must be capable of having a defamatory effect. Section 2 of the Defamation Act 2009 defines a defamatory statement as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.’

Finally the individual making the claim must be identifiable from the published statement. To show there has been identification the individual need not necessarily be named in the statement, it is sufficient to show that it is possible to identify the individual from a description or even an image contained in the statement.

Defamation actions are usually settled at an early stage as it difficult to predict with any degree of certainty what the outcome of the case will be especially as the decision is in the hands of the jury. A publisher could potentially be put out of business by a high award, or the costs could bankrupt an individual. One of the most publicised settlements in Ireland is reputed to have been made in the claim brought by Fr Kevin Reynolds against RTE for falsely alleging he had raped a young African girl and fathered a child by her. The damages were believed to have been in the region of ¤800,000.

As mentioned above, issues arise where journalists, who are merely trying to do their job by writing a story about someone, risk interfering with an individual’s right to a good name and their right to privacy. However, because freedom of expression is a fundamental right in any democracy, the 2009 Act attempts to create a balance between freedom of speech and a person’s right to a good name by providing defences to claims of defamation.

There are a number of possible defences provided for by the Act. One of these defences is the defence of truth. The truth is always a complete defence to an allegation of defamation.

That is, if it can be proven that a potentially defamatory statement is true, then the

alleged injured party cannot win an action for defamation. It is not necessary to show that the entirety of a statement is true, this defence can be used as long as the allegations not proven to be true do not materially injure the plaintiff’s reputation. The defence of honest opinion is also available. For this defence to be used it must be the case that the defendant to an action honestly believed in the truth of the opinion given, that the opinion was based on proven or honestly believed allegations of fact that were known to

those to whom the statement was published and that the opinion related to a matter of public interest. The defence of fair and reasonable publication on a matter of public interest will apply when it can be proven that the statement was made in good faith on a subject of public interest for the benefit of the public. Finally it must be noted that no action for defamation can arise out of a statement the publication of which the complainant consented to.

The Law on Prostitution Lucy Ryan

Under current legislation in Ireland the purchase of sex is technically not illegal, nor is the selling of sexual services. It is however, an unusual concept of law as although the act itself is not illegal, many of the activities related to prostitution are seen as public offences. Irish law does not seek to prevent the sale of sexual services and those that commit the act in private are not breaking any law. The law safeguards these transactions as agreements between consenting adults. However various activities associated with prostitution are considered to be public order offences. The current legislative stance on prostitution has a dual-approach. Firstly it aims to protect society from the more indiscreet aspects of prostitution from a public order perspective. In accordance with this is the Criminal Law (Sexual Offences) Act 1993 which states it is an offence to solicit in a street or public place for the purpose of prostitution. The relevant sections of the Act are sections 7 – 11, extending soliciting, loitering and importuning in a public place to cover men as well as women. The offence can be committed by the prostitute, the client or a third party, for example a pimp. The offence is gender neutral, it covers solicitation by either a male or female for the purpose of prostitution (which includes male prostitution). Before the enactment of the 1993 legislation, one of the criticisms frequently made of the law was that it discriminated against the prostitute. Only the conduct of the prostitute, not the client, was penalised. However at present Irish law strives to protect prostitutes from exploitation. Therefore it is an offence under the 1993 Act to organise prostitution, coerce or compel a person to be a prostitute, knowingly live on the earnings of a prostitute, or keep or manage a brothel. Children are also protected from prostitution under the Children Act 2001 where in relation to child sexual abuse, for the purposes of the criminal law, the age of consent is 17 years.

The nature of prostitution in Ireland has dramatically evolved over the last decade. Street

prostitutes, the most visible face of prostitution, have been outnumbered by off-street prostitutes whose services are availed of through the internet and agencies. The number of prostitutes operating in Ireland has increased significantly yet the extent of the trafficking of women into and within Ireland for sexual exploitation is unknown. About three quarters of human trafficking victims in Ireland were trafficked for sexual exploitation. In 2012, there were 39 reported cases of sex trafficking, 19 of which were children. The upsurge in websites offering ‘escort services’ has served to normalise prostitution but the reality is that most sex trafficking victims are sold online. On an average day in Ireland between 800 and 1,000 women and girls are advertised online for prostitution, and of those, up to 97 per cent will be foreign migrants. Under the Criminal Law (Public Order) Act, 1994 the advertising, distribution or publication of materials which promote commercial sexual services is prohibited in the Irish state. Subsequently commercial sexual services are advertised on the internet, often via UK hosted websites.

Current Irish legislation surrounding the area of prostitution has prompted many human rights actions including the formation of the Turn Off the Red Light campaign. This movement is made up of an alliance of unions, non-governmental organisations and individuals whose focus is on a campaign to end prostitution and sex trafficking in Ireland. Where legislative change is concerned, the law surrounding prostitution is a difficult subject, not just because of the moral stigma often associated with this area but also due to the resulting effect any decisions may have on vulnerable woman in the industry. So, where does the safekeeping of the most vulnerable come into it all? According to the Turn Off the Red Light campaign 75 percent of women in prostitution became involved in the industry when they were children, 70 percent have spent time in care and 45 percent report experiencing sexual abuse during their childhoods. The Turn Off the Red

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Light campaign, and many former prostitutes and survivors of exploitation, fight for a law similar to that in Sweden. The Swedish model operates by decriminalising the selling of sex while pimps, buyers or other prostitution related activities are criminalised.

as Turn Off the Red Light and RUHAMA are calling on political parties to support the Sexual Offences Bill, and see it swiftly through the legislative process, however due to the General Election the Bill’s legislative progress is on hiatus until the appointment of the new cabinet.

In November 2015, Minister for Justice Frances Fitzgerald published the General Scheme of the Criminal Law (Sexual Offences) Bill 2014, which outlined two new offences one of purchasing sexual services and another of purchasing sexual services from a trafficked person. If successful, the Bill in question would also see the legal pressure shift from the sex worker to the buyers of sex. In many cases, it is the buyers who are perpetrating crimes and violence against sex workers, and their business affords pimps and traffickers the opportunity to do the same.

In the March 2014 Council of Europe Report, “Prostitution, trafficking and modern slavery in Europe,” it is suggested that member states should consider, “criminalising the purchase of sexual services, based on the Swedish model, as the most effective tool for preventing and combating trafficking in human beings.” The Joint Committee on Justice, Defence and Equality has recommended criminalising the purchase of sexual services in Ireland. Organisations such

The regulation of prostitution in Ireland is currently under review. If fundamental changes are to be made as to how prostitution is regulated in Ireland then the rationale behind these changes needs to be considered. For example, is the aim to eliminate prostitution entirely? Or is it to ensure prostitutes are better protected? Or to update current laws to react better to a changing market? Ireland’s approach to the regulation of prostitution has been the criminalisation of offences surrounding prostitution. The rationale behind this partial criminalisation has been an attempt to protect prostitutes and to protect society from the nuisance and public-order problems associated with prostitution. Any changes to this approach need to be considered carefully in the context of how other countries have attempted to regulate prostitution and how any changes may affect vulnerable individuals.

The Law Surrounding Domestic Violence Hermine de Cevins

Domestic violence, the use or threat of physical, sexual, emotional or financial abuse against one’s spouse, partner, children or family members, is a major issue in Irish society that needs to be dealt with more effectively by legislation. The current legislation covering this area, the Domestic Violence Act of 1996, has been criticised by a number of organizations such as Safe Ireland and Women’s Aid. The Minister for Justice and Equality Frances Fitzgerald, launched a new Bill on domestic violence on the 24th of July, 2015, aiming to widen the scope of protection for victims of abuse. This is a step towards the ratification of the Istanbul Convention on domestic violence, enacted by the Council of Europe on the 1st of August 2014, and signed by Ireland on the 5th of November 2015.

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The Domestic Violence Acts 1996-2002 enhanced the power of the Gardaí to arrest and prosecute those who commit violent acts against their family. However, for an applicant to receive a protective order, the court must have reasonable grounds to believe that the applicant’s physical or emotional welfare is at risk. The court does not have any precise criteria required for this standard to be met; this discretion renders the

application of the law uncertain and non-uniform, which can result in lawyers struggling to advise their clients.

The applicant has access to two main kinds of protection: the safety order or the barring order.

The former is arguably quite light, as it does not force the violent person to leave the house; it simply prohibits them from committing or threatening to commit further violence. The Act can also provide for protection orders where the parties are not living together, preventing the stalking of the victim. A barring order is the stronger of the two protections. It requires the perpetrator of the abuse to leave the home at once and forbids them from further attacking or threatening the victim. Most suggested changes to legislation are in regards to the court process used in applying for these orders, and the enforcement of court orders. While the Act calls for a Class B fine (not exceeding 1,900 euros) or up to 12 months of prison, research by Safe Ireland conducted in 2015 found that breaches of orders often go unpunished.

If the need for protection is urgent, immediate orders can be granted while the applicant is

waiting for a court hearing. They may be heard by a District Court judge on the day of the application or any time before the actual hearing.

Spouses can apply for both orders, and safety orders to protect children are also facilitated even if the parents are not married and do not live together. The criteria for securing an order are much stricter for other types of relationships, with some automatically excluded from availing of the remedy, such as adult siblings seeking a barring order or those affected by a nullity decree. Cohabitating couples for instance can only apply for a barring order if they own most or all of the house and have been living in an intimate relationship for six of the previous nine months.

A major issue with the current system is the exposure of victims to retribution from their abusers, knowing that they will not be prosecuted without the victim’s assent. Thus there is a need for the new Bill to focus on preventing the intimidation of the victim in legal proceedings.

The Bill would protect the victim’s anonymity, allow them to give evidence via video link and restrict which persons can be present in the courtroom. Contacting the victim through phone or Internet would also be deemed a breach of an order as much as stalking is today. Despite their support of the Bill, humanitarian organizations still find it lacks in some areas. Safe Ireland have expressed that the State should provide better

for those who succeed in leaving an abusive home, such as finding food, shelter, clothes and caring for their children. The lack of protection for young women has also been criticised as well as the fact that in many cases the victim cannot seek an order as they are not currently living with their partner.

The Bill would allow Ireland to ratify the 2014 Council of Europe’s Istanbul Convention and implement it into domestic law. Fighting all types of gender-based crimes, considered breaches of human rights, the Convention wishes to eliminate violence against women through an international co-ordinated approach between European members States. The Convention urges member States to implement legislative changes, which in Ireland, would be the passing of the Domestic Violence Bill. Member states are encouraged to offer extensive information to citizens about the protections to which they are entitled and the type of violence women face through the use of awareness campaigns. They also are called on to provide protection through easily accessible shelters and rape crisis centres with counselling and medical examination provided. Member States should also aim to improve rehabilitation and the prevention of abuse by developing programs for perpetrators of violence against women, and fight the culture of discrimination by promoting gender equality.

The Regulation of Charities Hazel Kerrigan

Charity is an important element of everyday life and acts as a lifeline for many individuals and causes worldwide. Non-profit organisations play an essential role in Ireland’s social and economic life and encompass a broad range of issues. Charity law revolves around the governing principles of “charitable purpose” and “public benefit”. In addition, charity possesses other characteristics such as; to be a charity an entity must be confined exclusively to charitable purposes, be independent, non-profit distributing and non-political. In Ireland, these elements of charity find a statutory basis in the Charities Act 2009. Transparency and accountability are essential traits in all sectors and this is especially the case in relation to the law of charities.

Historically, transparency and accountability has been somewhat lacking in Irish affairs. In recent years, the Irish government has introduced significant legislation in order to increase public confidence with regards to lobbying activities in organisations nationwide. This legislation has come in the form of the Charities Act 2009 and to a certain extent the Regulation of Lobbying

Act 2015 - although the latter has a much broader basis than just the non-profit sector.

In recent decades there has been a great need for greater regulation of charitable organizations in Ireland. There was a lack of opportunity for the Irish judiciary to examine the common law definition of charity and, there was an absence of a regulatory authority to oversee the activities of the non-profit sector. Ireland’s charitable sector was in need of review in order to heighten accountability and governance standards to protect the legitimacy of organisations and their donors. The Charities Act 2009 clarified the definition of a “charitable purpose”, provided guidance on the test regarding the presence of public benefit, established the Charities Regulatory Authority and made provisions for a Register of Charities.

Section 3 of the Charities Act 2009 sets out the circumstances in which a purpose is deemed to be charitable. These circumstances arise in the pursuance of: the prevention or relief of

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poverty or economic hardship, the advancement of education, the advancement of religion, or any other purpose that is of benefit to the community. Under the Act it is a criminal offence for a body to operate as a charity in Ireland without registering with the Charities Regulatory Authority. Charities registered with the Charities Regulatory Authority are obliged to file annual reports in relation to charitable activities as well as file returns when necessary. In line with societal norms it is highlighted that certain groups such as political parties or trade unions are prohibited from obtaining charitable status.

An interesting element of this legislation is that charities are permitted to promote a political cause if it relates directly to their charitable purpose. The legislation puts the public benefit at the heart of charitable status. In this instance a gift must operate in furtherance of the public benefit.

A recent development in this area of Irish law came as a result of the Regulation of Lobbying Act 2015. This Act provides that, for the first time, any person or body who lobbies public officials will have to register and report on their activities.

As a result of this, Ireland can now place itself amongst a small number of countries with a framework for transparency surrounding the process of lobbying. Lobbying plays a vital role in the pursuance of the public good and must occur in order to initiate change. Public policy is enhanced and developed greatly through the act of lobbying. Unfortunately, lobbying is sometimes viewed in a bad light as the public interpret lobbyists as acting for their own interests instead of the public benefit. The Act seeks to rectify this and therefore, requires individuals that conduct lobbying activities to register online and disclose to whom they lobby. As a result of this documentation of communication, the public’s confidence in important decisions should increase.

The Regulation of Lobbying Act 2015 is relevant within the charitable sector as most charities, non-profit organisations and advocacy groups fall under the remit of the Act. Under the Act all communication with Designated Public Officials must be recorded in the Register of Lobbying.

The aim of the Act is to enhance transparency

regarding those who are communicating with Government and senior civil and public servants on public policy matters connected with the allocation of public funds, development of public policy or legislative changes. Officials which are included in the Regulation of Lobbying Act 2015 are TDs, MEPs, councillors, special advisers and secretaries general of government departments. This Act will certainly have an impact on everyday communications as it requires organisations to evaluate the nature of the communication, the identity of those making contact and the public officials that are involved.

Subsequently, failure to comply with the Act may result in an investigation by the Commission for Standards in Public Office (SIPO), fines of up to ¤5,000 and/or imprisonment for a maximum of two years.

The Irish Government has taken conscious steps to ensure that past mistakes are not repeated by introducing stringent regulatory policies regarding transparency and accountability.

Both the Charities Act 2009 and the Regulation of Lobbying Act 2015 place an onus on organisations to comply with legal provisions in order to be transparent to the public. Organisations which have been granted charitable status according to the Charities Act 2009 are entitled to lobby. This lobbying must adhere to the provisions of the Charities Act 2009 and must fit in with the organisation’s primary objectives. If an organization is in doubt whether an act of lobbying is in keeping with their objectives they are empowered to seek the advice of the Revenue Commissioners or the Charities Regulatory Authority. In the case of civil society and charitable organisations whose activities regularly entail communication with designated public officials these changes should be viewed favourably by their supporters. The Regulation of Lobbying act 2015 does not change the stated requirements of the Charities Act 2009 or the Taxes Consolidation Act 1997.

In conclusion, Irish law has learned from its past mistakes and through the legislation outlined above has enacted a system which should serve to heighten the trustworthiness of charitable, non-profit and advocacy organisations in the eyes of the public.

The Right to Bail Explained Joanna Crowley

The most important Irish case on bail is the Supreme Court decision in the People (AG) v O’Callaghan where Wallace J stated that the purpose of bail was to secure the appearance of 35

the accused at his trial.

Bail is the “releasing of a person from custody in return for which the accused person undertakes

to pay a sum of money in order to guarantee that they will appear at the next sitting of the court to which they are remanded”. The person is let out of custody but must pay an amount that is not returned if they don’t turn up in court. The introduction of The Bail Act 1997 established the grounds on which bail may be granted or refused in Ireland.

A person accused of a crime may apply to the District Court for bail, at which time the Judge will weigh up a number of factors in deciding whether to grant or refuse the request.

Some of the factors that a court will take into consideration when deciding whether to grant or refuse bail are:

• The nature and degree of seriousness of the • •

offence with which the accused person is charged The sentence likely to be imposed on conviction The nature and strength of the evidence in support of the charge and any previous convictions of the accused person, including any conviction which is subject to an appeal (which has neither been determined nor withdrawn) to a court

Although these are the conditions specified in the 1997 Act, it is clear that the potential danger to the public posed by the defendant’s release is a clear factor in the issuing of bail.

Section 2 of the Bail Act 1997 states that a court may refuse bail to someone if the person has been charged with a serious offence eg: rape, murder, false imprisonment, as well as if they think it’s reasonably necessary to prevent that person committing a serious offence on bail.

Section 1 of the Act describes a “serious offence” as particular acts for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty. In certain circumstances the accused will have to apply to the High Court for Bail, for example where the person is accused of murder or attempted murder.

Where Bail is granted, there are a number of conditions that need to be satisfied and followed. It can be argued that these conditions are established to help protect public safety.

Section 6 of the Act lays down a list of conditions that the court may apply The most important conditions are that the accused not commit any further offence during his/her bail and that they maintain good behaviour. They could also impose conditions such as:

• That the accused person resides or remains in a particular district or place in the State

• That the accused person reports to a •

•

specified Garda Síochána Station at specified intervals That the accused person surrenders any passport or travel document in his or her possession or, if he or she is not in possession of a passport or travel document, that he or she refrains from applying for a passport or travel document That the accused person refrains from having any contact with such person or persons as the court may specify

If you breach any of the conditions of your bail, the Judge will issue a Breach Warrant which gives the Gardaí power to arrest you and bring you to court.

The introduction of the Bail Act caused extreme controversy, with many believing that it was prejudicial and failed to balance the presumption of innocence of the accused and the importance of ensuring public safety. Bail is not a constitutional right, although Article 40.4.6 of the Constitution provides that provision may be made by law for refusing to grant bail if such refusal is “reasonably considered necessary” to prevent the accused from committing further crimes. Section 1 of the Bail Act gives the court the power to refuse bail and remand the person for any serious offence and also allows them to refuse bail if the person has committed any other previous crimes.

This completely contradicts that presumption, the defendant has not been convicted of a crime, yet they are denied their right to liberty.

Depriving someone of their liberty is the harshest sanction that Ireland can impose upon a person accused of a crime, yet people are imprisoned “based on a suspicion that they may have an intention to commit a crime, which certainly does not constitute a crime”. Although this hardship is justified by some under public safety, there is a critical point at which a median needs to be found between balancing the accused’s presumption of innocence and protecting the public safety.

There are efforts being made to change this area of law. The government announced plans for a new Bail bill, which purports to introduce a number of welcomed changes, which will alleviate the gap between the presumption and ensuring public safety. It also says the courts must give reasons for their granting or refusal of bail.

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The Right to be Forgotten Ashley Braham & Anthony O’Shea

There has been much discussion around the ‘right to be forgotten’ over the last two years since the concept was legally solidified on May 13, 2014 by the ruling of the Court of Justice of the European Union. The idea that people have the ‘right to be forgotten’ is not a new one; the 1995 Data Protection Directive gives a number of rights in relation to personal data. However, the ruling in this case has prompted an effort to modernise Europe’s data protection rules to make the law more relevant and suited to the technological advancements that have occurred in the last twenty years. The advancements in technology and the culture of social media sharing means that people leave significant digital traces, which can be exposed by a quick search on the internet.

The 2012 draft data protection directive, currently making its way through the final legislative steps in the EU Commission, seeks to address some of the issues that have emerged by giving individual users expanded rights and greater control over their personal data held by third parties.

The case that brought this issue to the public’s attention involved a Spanish citizen who complained that details of his repossessed home on Google’s search results infringed his privacy rights because all proceedings against him had been fully resolved for a number of years and were therefore irrelevant. Having found that EU data protections rules applied to a search engine, even where the physical server of the data processor was located outside the EU, the Court held that individuals have the right to request that links with personal information about them be removed where the information contained in the link is inaccurate, inadequate, irrelevant or excessive for the purpose of data processing.

The Effect on Search Engines As of November 2015, Google received a total of 348,085 removal requests to remove 1,234,094 URLs and roughly 42% of these links were removed. The question is how do these companies decide which requests to deny and which to grant?

The court was extremely vague in its ruling and the only legal guidelines they gave is that information must be removed if it is inaccurate, inadequate, irrelevant or excessive for the purposes of data processing. The court did little to clarify how the right to be forgotten works in practice other than stating that a case-by-case assessment is necessary to balance the right to be forgotten against other fundamental rights such as the freedom of expression.

Google formed an Advisory Council to begin 37

developing their own guidelines for the evaluation of deletion requests before any guidelines were put forward by EU regulators. This allowed Google to shape their interpretation of the ruling to suit their needs and this is evidenced by the fact that the review process has not yet been made sufficiently clear to the public. If Google refuses a request it is open to the complainant to appeal the decision to their local data protection agency. As of May 2015, the British Data Protection Agency dealt with 184 appeals and overturned Google’s decision in roughly 25% of the cases.

Companies like Google don’t have the resources or the legal certainty to adequately deal with each of the thousands of deletion requests that pour in each day meaning that information that may not be required to be removed from search engine results is deleted. In addition the 2012 draft general data protection legislation provides that companies who do not adequately deal with deletion requests can be fined. There are criticisms that this may lead to search engine companies deleting information that they aren’t required to remove simply to avoid being fined and thus compromising the integrity of online information and the accuracy of search engine results.

To what extent can we actually forget?

If a deletion request is approved, the link to the information is removed but the content remains online. These links are also only removed from European versions of the search engines meaning that the links can still be viewed from outside of the EU or when someone is using software to hide their computer’s location.

Another major issue in this regard is the anger and criticism towards the ruling’s perceived infringement on the freedom of expression. The ruling has faced backlash from a number of news sites, which have published articles containing lists of the URLs on their websites that have been removed from Google’s search engine results.

Not only are the removed links included in these articles but also a small description of what the link is about. These articles contain a stockpile of accessible data about people who wish for it to be forgotten, thus making the entire process counterproductive.

Although the 2012 draft legislation is attempting to solve the issues in the current law, the speed with which technology is progressing means that legislation is being left behind, it appears therefore that the new proposed legislation is nothing more than a small plaster attempting to fix a much larger problem. The legislation

was drafted four years ago and is not likely to come into effect until 2018. If you consider the changes that have occurred in technology in the last four years, this legislation risks being outdated before it’s even been implemented. The tensions between privacy and data protection

on the one side, versus freedom of speech and access to information on the other are becoming intensified. Unfortunately, it appears that the ‘right to be forgotten’ ruling is only a small step towards addressing these issues.

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