UCD SLS 80 years of Bunreacht na hÉireann by UCD Student Legal Service

80 YEARS OF BUNREACHT NA hÃ&#x2030;IREANN

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UCD Student Legal Service Sutherland School of Law Belfield Dublin 4

All enquiries should be directed towards: studentlegalservice@ucd.ie UCD Student Legal Service 2018 Sutherland School of Law, Belfield, Dublin 4. ÂŠ University College Dublin Student Legal Service 2018

80 YEARS OF BUNREACHT NA hÉIREANN

Foreword Perhaps the most surprising feature of the 80th anniversary of the Constitution was that it happened at all. After all, who could have thought that a Constitution drafted in such unpromising times could have survived in such a robust fashion into the present era? This was the conclusion of a recent round table discussion between Irish and Indian constitutional lawyers in respect of both of their respective Constitutions: while both documents have certain quirks and flaws, they have both endured and, more importantly, they have laid down the ground rules for democratic government, the rule of law and judicial review. (The Irish Constitution served as a model for its Indian counterpart some twelve to thirteen years later). Many constitutional lawyers and political scientists divide Constitutions into what the 19th century English political scientist, Bagehot, described as the “dignified” and the “efficient” parts. In the case of our Constitution, it was clauses such as those dealing with the “special position” of the Catholic Church (deleted in 1972) or the references to women in the home that may fairly be described as composing the dignified parts, i.e., largely symbolic statements of national values,

generally largely devoid of firm legal consequences. The “dignified” (or largely symbolic) part of the Constitution was, of course, the easiest part of the Constitution for non-lawyers to understand and this is why the Constitution has attracted an unusually high degree of unmerited criticism. I would not wish to be misunderstood: there is no question but that even in 1937 and even more so now, some aspects of the specifically religiously inspired aspects of the Constitution, reflecting as i

UCD Student Legal Service they do the traditions of Catholic nationalism, do not always easily accommodate themselves to the pluralism and tolerance expected of a modern European society. One can, I think, nevertheless make too much of this and, in any event, the constitutional changes - such as the deletion of the references to the “special position” of the Catholic Church and the prohibition on divorce - of the last thirty to forty years have deprived many of these traditional objections of a good deal of their contemporary force. Even the 34th Amendment of the Constitution (Marriage Equality) Act 2015 has had consequences over and above the recognition of same-sex marriage per se, since, for example, as the Supreme Court recently confirmed in the 8th Amendment/unborn case that this meant that the traditional view that Article 41 (dealing with the family) enshrined a specifically Christian view of marriage now no longer obtains. By contrast, it is the efficient part of the Constitution which generates the case-law and is the working reality for law students, litigators and judges alike. It represents a radical break with the common law method of case-by-case, reasoning by analogy and slow, incremental development of legal principles. Our constitutional law requires a quite different mind-set, namely, to judge the existing law by reference to a set of inherently generalised principles, (“due course of law”, “inviolability of the dwelling”, “defend and vindicate”, “personal rights” etc.), together with the ultimate power to annul that law in the event that it did not measure up to these constitutional standards. Here I think that, if anything, in this respect the Constitution was almost too radical for the

80 YEARS OF BUNREACHT NA hÉIREANN legal system fully to absorb and the judiciary have sometimes struggled to live up to its full promise. The Constitution has nevertheless engrafted itself onto Irish life. I can only hope that this volume may help those who may be superficially critical to familiarise themselves with the endless debates about the role of law and society – so memorably captured in Ruadhán MacCormaic’s great book, The Supreme Court – which is part of the endless fascination of Irish constitutional law.

Gerard Hogan Court of Appeal

8 March 2018

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UCD Student Legal Service

Introduction

As the Constitution of Ireland enters its ninth decade in operation, we felt that it was a prime opportunity to examine how the Constitution still plays a vital role in the domestic legal framework. The articles examine the historical backdrop of the enactment, where appropriate, but also how the document has been interpreted in different ways as time moves on and society changes. This publication aims to provide an overview of key provisions of the Constitution, though, of course, the discussion focuses on just certain sections of the document. Our contributors begin with an examination of the Nation, its official status and languages, and Irelandâ&#x20AC;&#x2122;s international relations. The next section looks at the roles of political actors and focuses primarily on the interaction between the Constitution and politics in the State. The third chapter moves towards individual fundamental rights. Many of

the constitutionally protected rights apply specifically to those who are accused persons. The unenumerated rights doctrine provides an insight into how the Constitution developed, and how rights which have not been explicitly written in the document can still be derived. The role of the courts in bringing about social change is also highlighted.

80 YEARS OF BUNREACHT NA hÉIREANN The focus then moves to the family and socioeconomic rights. The contributors draw attention to certain provisions which many people feel are anachronistic; the product of a different era in Ireland. Finally, the fifth chapter focuses on democracy and voting. The issue of putting essentially the same question to the people more than once is considered, with much made of whether such action is compatible with functioning democracy at all. Throughout the publication, it becomes clear that judges have a determining role to play in constitutional development. Alternative judicial philosophies have had a huge effect on the legal landscape. The initial conservatism of judges was replaced by an activist Ó’Dálaigh court in the 1960s. Much of the rights-oriented jurisprudence emerged during this period. Future Supreme Courts have tended to lack this revolutionary zeal, perhaps in recognition of the proper position of the judiciary in the tripartite separation of powers. It is hoped that this publication will encourage discourse and discussion among students, and even provide an accessible introduction to the Constitution for those unfamiliar with the discipline.

We, the editors, would like to thank most sincerely the Hon. Mr Justice Gerard Hogan for providing the foreword to this publication. We would also like to thank Dr John O’Dowd, Senior Treasurer of the UCD Student Legal Service. Most of all, we would like to extend our gratitude to our sub-editors, graphic designer and contributors, without whom this publication would not have been possible. The enthusiasm and immense

UCD Student Legal Service ability of contributors to explain often complex subject matter in simple language is a testament to their skill.

Robert J. Lee & BrĂan Donnelly Editors

80 YEARS OF BUNREACHT NA hÉIREANN

ACKNOWLEDGEMENTS

Editors: Brían Donnelly & Robert J. Lee Graphic design and illustration: Shane Clune Sub-editors: The Nation, the Nature of the State & International Relations // Emma-Jane Grant & Eve Ryan The Dáil, the Seanad & the President // Edward Kevin The Courts, Fundamental Rights & Rights of the Accused // Fionn Henderson Socioeconomic and Cultural Rights, Education and & Family // Margaret-Ann Gallagher

Voting, Democracy & the Referendum // Cormac Patrick English

Contributors: Erin Nic an Bhaird Helen Brady Mark O’Brien-O’Reilly Danielle Erica Curtis Éire Dempsey Nessa Denihan Patrick Cormac English

Margaret-Ann Gallagher Fionn Henderson

Jack Heron Adrianna Keenan Rowan Kelleher Laura Kirwan Stephen Lahert

Daniel Forde

James Lawless

Rebecca Gahan

Jane Leydon vii

Doreen McCarthy Rachael Mullally Sarah Murphy Brian Owens Rónan Riordan Niall O’Shaughnessy Christopher Woods

UCD Student Legal Service

Committee: Maryia Amelyanchuk

Robert J. Lee

Tara Casey

Robert Lee

Claire Cashman

Grace Looby

Danielle Clarke

Sarah Murphy

Shane Clune

Anna O’Duffy

Brían Donnelly

Molly Sheridan

Eoin Galligan

Christopher Woods

Robert Glascott Laura Kirwan

With special thanks to: The Editors wish to gratefully acknowledge the staff of the UCD Sutherland School of Law for their continued support of the UCD Student Legal Service. In particular, we would like to thank Dr John O’Dowd and the Dean of UCD School of Law, Professor Imelda Maher. We also wish to extend our sincere thanks to the Honourable Mr Justice Gerard Hogan for his support and for providing a foreword for this year’s publication.

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80 YEARS OF BUNREACHT NA hÉIREANN

Table of contents The Nation, Nature of the State & International Relations 1. Art. 3—Irish Unification in a Post-Brexit World // Helen Brady

2. Stádas Bunreachtúil na Gaeilge de réir Cúirteanna na hÉireann // Erin Nic an Bhaird

3. The Ramifications of an Irish Neutrality Amendment // Jack Heron

4. Art. 29: A Means to an End, or an End in Itself? Does EU Membership Compromise Constitutional Sovereignty? // Éire Dempsey

5. Financial Regulation and the Democratic State // Adrianna Keenan

The Dáil, the Seanad & the President 1. The Election, and Constitutional Role, of Uachtarán na hÉireann // Mark O’Brien O’Reilly

2. The Constitution, the Oireachtas and Public Inquiries: A Recipe for Disaster? // Stephen Lahert

3. Article 26: Testing the Untried // Daniel Forde

4. Is the Dáil a ‘Puny’ Parliament? // Brian Owens

UCD Student Legal Service The Courts, Fundamental Rights & Rights of the Accused 1. Art. 34.1: The Public Administration of Justice // Nessa Denihan

2. The Right to Legal Advice after Arrest // Rebecca Gahan

3. The Reform of the Exclusionary Rule in JC // Fionn Henderson

4. A Harbinger of Social Change: McGee v Attorney General // Sarah Murphy

5. The Golden Age of Enumeration—the Court that gave Life to the ‘Living Document’ // Niall O’Shaughnessy

6. Is One Presumed Innocent all around the World? // Doreen McCarthy

7. Article 40.6: Blasphemy // Rachael Mullally

Economic, Social & Cultural Rights 1. Asylum Seekers and the Freedom to Work in Ireland // Margaret Gallagher

2. Article 41.2—A Need for Change? // James Lawless

3. The Origins of Divorce Law in Ireland // Rowan Kelleher

4. The Family based on Marriage—Does this Reflect our 21st Century Society? // Laura Kirwan

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80 YEARS OF BUNREACHT NA hÉIREANN

Economic, Social & Cultural Rights cont. 5. The Right to a Home under the Irish Constitution // Danielle Curtis

6. Changes in Family Law—The Divorce Waiting Time Bill // Jane Leydon

Voting, Democracy & the Referendum 1. Popular Sovereignty in the Irish Context // Rónan Riordan

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2. The Rise of the Independence Referendum and the Future of the Island of Ireland in the EU // Christopher Woods

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3. The Second Referendum—Context and Implication // Patrick Cormac English

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The Nation, the Nature of the State & International Relations

The Nation, the Nature of the

State & International Relations ___________________________________ Article 3: Irish Unification in a Post-Brexit

World Helen Brady

When the United Kingdom voted to leave the European Union by a margin of just 3.8 per cent in June 2016, it left many in Northern Ireland, where 55.8 per cent of voters had voted to remain within the EU, concerned about their future. The Northâ&#x20AC;&#x2122;s two leading nationalist parties, Sinn FĂŠin and the SDLP, had campaigned to remain. There was further electoral success for nationalist parties in the North nine months later when unionist parties lost their overall majority in Stormont for the first time in history. It is unsurprising that in the immediate aftermath of these results speculation began to emerge about the 1

80 Years of Bunreacht na hÉireann inability of the United Kingdom to stay united. Fierce opposition to the reintroduction of a hard border between the North and the Republic, and resentment at being brought unwillingly out of the EU by Westminster, have led nationalist parties to suggest that the time may be right for a border poll. Such a poll would allow Northern voters to express their desire either to remain in the UK and therefore outside the EU, or to re-join Ireland and remain within the EU. Whether the calls for Irish unification are likely to yield results, or are merely examples of political opportunism, there remains the prospect of a united Ireland and it is more likely than ever before. Therefore, the legal and constitutional practicalities of uniting Ireland are important to consider. Article 3 of Bunreacht na hÉireann sets out the Republic’s constitutional position on the attainment of a united Ireland. The Article was amended

in 1998 to allow the Government to ratify the Good Friday Agreement, which formed the basis for the Northern Ireland peace process and which recognised ‘the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland’. The claim of the old Article 3 to the whole island of Ireland as the national territory was abandoned in favour of an aspiration to unification only where a democratic majority in both jurisdictions on the island were in favour. This remains the constitutional position to this day. The current Article 3 states that ‘[i]t is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united 2

The Nation, the Nature of the State & International Relations Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island…’ There are a number of points to note about this Article. Firstly, it is not merely an aspiration or a matter of discretion for the government but is, in the words of former Attorney General Rory Brady SC, a ‘constitutional imperative’ to unite the island of Ireland if the democratic conditions laid down in the Article are met. Unification is stated in the Constitution to be ‘the firm will of the Irish Nation’. Gerard Hogan and Gerry Whyte, in their leading work on constitutional law, J.M. Kelly: The Irish

Constitution, write that ‘it would not be open to an Irish government to repudiate, or to act any way inconsistently with, the desire for unity’. Secondly, there are practical issues to consider should a referendum be held. The term ‘majority’ is an important one in the Article, as unity may only be achieved if ‘a majority of the people’ democratically express their consent to it, but the term is never defined. Hogan and Whyte write that ‘a majority’ has several possible interpretations. It could mean a simple majority of all those voting on the day, or a majority of all those on the electoral register. Mr Justice Richard Humphreys of the High

Court, in his work Countdown to Unity: Debating Irish Reunification, asserts that ‘‘a’ majority is a simple test referring to 50 per cent plus one of those participating in a referendum’. At the time of writing, Taoiseach Leo Varadkar had recently been quoted in the press as saying that he favours a united Ireland ‘with cross-community support’. While the Constitution specifies only ‘a majority’, the Taoiseach’s view expresses a wish that a stronger result than “50 per cent plus one” would be desired 3

80 Years of Bunreacht na hÉireann to achieve a united Ireland. A narrow margin in favour of unification could result in a perception that unification was based on shaky foundations and give Northern unionists justification to demand a second referendum. However, the wording of the Constitution, as outlined in the preceding paragraph, would seem to suggest that the government could not reject its obligation to unite Ireland if a simple majority of voters expressed their consent. Thirdly, as we have seen, the Article stipulates that the consent of a majority be obtained in the North as well as in the Republic. This means that the Article, unusually in the Constitution, has extra-territorial effect. It also makes Irish constitutional change contingent on the result of a referendum outside the jurisdiction. The report of the Joint Oireachtas Committee on the Implementation of the Good Friday Agreement

outlines how this could affect unification. Looking to the terms of the Good Friday Agreement, a poll on the issue of unification may only be held in Northern Ireland where it appears to the Secretary of State that ‘a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland’. According to the Joint Oireachtas Committee Report, this would be ‘a matter for political consideration rather than a legal obligation’. However, where it can clearly be demonstrated to the Secretary of State that a majority would vote in favour of unification, his or her continued refusal to hold a poll could be met with international legal proceedings by Ireland, whose Constitution, as we have seen, mandates unification of the island where democratically consented to.

The Nation, the Nature of the State & International Relations Much of the political rhetoric in the UK post-Brexit was reactionary, and in the North one could argue that the rhetoric around a border poll was carefully timed by nationalist parties to capitalise on the pro-European, increasingly nationalist sentiments among Northern voters. Given the undeniable upheaval and, for many, unexpectedness of the Brexit result, however, it is also likely that many nationalist politicians do genuinely believe that the demographic and political tide is turning at such a rate that they may see a united Ireland within their lifetimes. Whether this will bear out remains to be seen. From an Irish legal standpoint, Article 3 of Bunreacht na hĂ&#x2030;ireann, in its former and amended condition, is an interesting chart of the history of the Republicâ&#x20AC;&#x2122;s attitudes towards partition and unification. The Article, in its contemporary form, is a reflection of Irelandâ&#x20AC;&#x2122;s acceptance of the need for reconciliation and political stability on both sides of the border, while also preserving the nationalist aspirations of the framers of the 1937 Constitution for a new era.

80 Years of Bunreacht na hÉireann

Stádas bunreachtúil na Gaeilge de réir cúirteanna na hÉireann Erin Nic an Bhaird

An Ghaeilge sa Bhunreacht De réir Airt. 8.1 de Bhunreacht na hÉireann, is í an Ghaeilge an teanga náisiúnta agus príomhtheanga oifigiúil na hÉireann. Sna cúirteanna, is í an bhrí atá le seo ná “go bhfuil sé de phribhléid ag an saoránach éileamh

go mbainfí feidhm aisti nuair a bhíonn gnóthaí oifigiúla le riaradh san Stát” .Cuireann Airt. 25.4.4 dualgas ar an Stát aisriúcháin Gaeilge oifigiúil a thabhairt do ghach Bille atá scríofa i mBéarla amháin.

Ó Beoláin v Fahy Is buachphointe é an breithiúnas in Ó Beoláin v Fahy ó thaobh an aitheantas a thugann na cúirteanna don Ghaeilge. Bhí Ó Beoláin ós comhair na cúirte chun cúis maidir le tiomáint ar meisce a fhreagairt, agus theastaigh uaidh a chás a rith trí mheán na Gaeilge. Dhiúltaigh Fahy Brmh ordú a thabhairt ag cuir treoir ar an Stiúrthóir Ionchúiseamh Poiblí leagan Gaeilge de na hachtanna um Thrácht ar Bhóithre a thabhairt do Ó Beoláin. Mar sin, bheartaigh Ó Beoláin athbhreithniú breithiúnach agus ordú toirmisc ar an gcúiseamh tiomáint ar meisce a lorg. Sa Chúirt Uachtarach, cháin McGuinness Brmh agus Hardiman 6

The Nation, the Nature of the State & International Relations Brmh an Stát toisc nár cloíodh leis an ndualgas bunreachtúil in Airt. 25.4.4 chun Achtanna de chuid an Oireachtas a aisriú. Cé nár éirigh le Ó Beoláin ordú toirmisc a bhaint amach sa chás áirithe seo, thug Hardiman Brmh rabhadh go mbeadh sé de cheart ag an chúirt ordú mar sin a thabhairt dá dtarlóidh a leithéid arís.

Acht na dTeangacha Oifigiúla 2003 Tar éis Ó Beoláin, chuaigh an Rialtas i mbun oibre chun athruithe suntasacha a dhéanamh i dtaobh cearta teanga. Rud tábhachtach a tháinig as seo ná Acht na dTeangacha Oifigiúla 2003. Ag dul i bhfeidhm ar na fadhbanna a shonraíodh i Ó Beoláin, deir Alt 7 den Acht tá sé de cheart ag an bpobal a bheith ag súil go bhfoilseofar gach Acht den

Oireachtas a achtaíodh go comhuaineach i nGaeilge agus i mBéarla a luaithe agus is féidir tar éis a achtaithe. Chomh maith leis sin, deir Alt 8 (2) go bhfuil dualgas ar na cúirteanna a chinntiú go bhféadfaidh aon duine éisteacht a fháil sa teanga oifigiúil is rogha leis nó leí, agus nach mbeidh sé nó sí faoi mhíbhuntáiste de bharr sin.

Ina dhiaidh Ó Beoláin Cé go bhfuil ceart soléir ag duine a chás a rith trí Ghaeilge, tá sé fós deacair le rá an bhfuil ceart ag duine leagan Gaeilge de cháipéisí riachtanacha don cás a bheith tugtha dó, nuair nach n-ordaítear seo le reacht. Tá an débhríocht seo le feiceáil i Ó Gríbín v An Comhairle

Mhúinteoireachta. Theastaigh ón iarratasóir cur isteach ar phost leis an 7

80 Years of Bunreacht na hÉireann gComhairle Mhúinteoireachta (atá faoin Roinn Oideachais). Bhí andeacrachtaí aige iarratas a dhéanamh trí Ghaeilge toisc nach raibh tuarascáil oifigiúil an Chomhairle Mhúinteoireachta ar fáil i nGaeilge. Bheartaigh an Chúirt nár chlúdaíodh cáipéisí ar nós seo faoi Acht 2003, agus nach raibh ceart ag Ó Gríbín leagan Gaeilge den tuairisc a éileamh de bharr sin. D’fhéadfá a rá gur chuir sé seo an t-iarratasóir faoi mhíbhuntáiste agus é ag déanamh gnó leis an Stát, rud nach ceadaítear faoi Alt 8(2) d’Acht 2003. Beartaíodh nach bhfuil ceart ann leagan Gaeilge a éileamh den teastas a mbíonn le síniú nuair a thaispeáineann anáileadán go bhfuil an teorainn alcóil sáraithe ag duine sa chás Ó Gríofáin v Éire. Tá an breithiúnas seo cáinithe ag Ó Conaill toisc go bhfuil an réasúnaíocht bunaithe ar an ceart chun trialach cothroime, in ionad ar chearta teanga .Sa chás Ó Conaire v

Mac Gruairc, bheartaigh Ó Néill Brmh nach raibh aon cheart ag an tiarratasóir na haistriúcháin do na ráitis finné (a bheadh déanta i mBéarla) a bheith tugtha dó. Is cáipéisí riachtanacha iad seo agus tá sé deacair na breithiúnais seo a réiteach le spiorad Airt. 8. Cás eile a bhí ag déileáil le cearta teanga agus a rith le haghaidh beagnach deich mbliain ná Ó Murchú v An Taoiseach. Bheartaigh an

Chúirt Uachtarach nach bhfuil aon rud sa Bhunreacht a thugann le fios go bhfuil dualgas ar an Stát leagan Gaeilge d'achtanna an Oireachtas a fhoilsiú go comhuaineach; nach bhfuil ann ach dualgas iad a chur ar fáil chomh luath agus is féidir. Ní hamháin sin, ach beartaíodh nach raibh dualgas bunreachtúil ginearálta ar an Stát Rialacha na Cúirteanna nó ionstraimí reachtúla a aisriú go Gaeilge. Mar sin féin, ghéill Macken Brmh go raibh Ó Murchú, mar dlíodóir a bhí ag rith cás trí Ghaeilge dá 8

The Nation, the Nature of the State & International Relations chliant, faoi mhíbhuntáiste mar gheall nach raibh leagan Gaeilge de Rialacha na Cúirteanna ar fáil, agus sa chás áirithe seo go raibh dualgas ar an Stát aisriúcháin a chur ar fáil dó taobh istigh de thréimhse ama réasúnta. Beartaíodh i Ó Maicín v Éire nach raibh ceart bunreachtúil ag an tiarratasóir éisteacht a fháil ó giúiré a bhí in ann Gaeilge a thuiscint gan cabhair ateangaire. Ba é an príomh-fáth a thug Clarke Brmh ná go mbeadh sé dodhéanta ceart mar seo a réiteach leis an mbreithiúnas i de

Búrca v an tArd-Aighne, a dúirt nach foláir do phainéal giúróirí a bheith ionadaíoch ar an tsochaí. D'easaontaigh Hardiman Brmh go láidir. Chreid sé nach raibh sé dodhéanta in aon chor painéal giúróirí de Ghaeilgeoirí a fháil, agus go dtarlaíonn a leithéid in British Colombia i gCeanada cé nach bhfuil ann ach méid beag daoine le Fraincis. Mhol sé, mar go bhfuil

Éire bunaithe mar stát dátheangach ,gur chóir ceantar giúiré Gaeltachta a bhunú.

Conclúid Ó tharla Ó Beoláin, is cosúil go bhfuil tús áite tugtha ag na cúirteanna

don réadúlacht bhreithiúnach ,agus go bhfuil na breithimh drogallach léiriú dian dleathaíoch a thabhairt. Cé go bhfuil beagáinín feabhas tagtha ar an scéal sna saolta deireannacha seo – m.sh. Acht 2003 agus an stádas atá bainte amach aici mar theanga oifigiúil san Aontas Eorpach – níl Gaeilgeoirí na tíre seo sásta go bhfuil na cúirteanna ag tabhairt an stádas bunreachtúil ceart don Ghaeilge. Mar dúirt Hardiman Brmh i Ó Maicín, “Dlí ceangailteach is ea an Bunreacht, a chuireann ceangal ar an rialtas 9

80 Years of Bunreacht na hÉireann agus ar an reachtas an dóigh chéanna a gcuireann sé ceangal ar an saoránach is umhaile.” Mura theastaíonn ón rialtas a bheith faoi cheangal Airt. 8 nó Airt. 25, tá an cumhacht ag an rialtas céimeanna a thógáil chun na hairteagail sin a athrú nó a bhaint ón mBunreacht. Ach go dtí go bhfuil sé sin déanta, ní mór don Stát "cloí le téarmaí an

Bhunreachta, díreach mar a bhíonn súil aige go gcloífidh an gnáthshaoránach leis an dlí".

The Nation, the Nature of the State & International Relations

The Ramifications of an Irish Neutrality Amendment Jack Heron

The Republic of Ireland has formally pursued a foreign policy of neutrality since World War II. Currently, although this policy is outlined in Articles 28.3.1 and 29 of the Constitution, neutrality is not a constitutional imperative but purely a matter of government policy. There has been a push in recent years to put neutrality on a constitutional footing, culminating in the failed Neutrality Bill 2016. In this article, I will explore the legal consequences of an amendment such as the one proposed in the 2016 Bill, and argue that while such an amendment would not drastically change the present form of Irish neutrality, it would provide less flexibility to future executives.

Neutrality in Irish law

There is a disparity between the definition of â&#x20AC;&#x153;participation in warâ&#x20AC;? in Irish law and international standards of neutrality. The legal status of Irish neutrality was discussed briefly in Horgan v Ireland, and more extensively in Dubsky v Ireland. Both cases concerned the use of Shannon Airport by United States military aircraft to land and refuel on their way to conflicts in the Middle East. In Dubsky, Macken J clearly states that actions which breach international standards of neutrality do 11

80 Years of Bunreacht na hÉireann not necessarily constitute “participation in war” for the purposes of Article 28.3.1, thus allowing the executive significant room for manoeuvre as to what does constitute “participation in war”. Furthermore, it is established in both cases that neutrality is not mandated by the Constitution. The effect of these decisions is to grant the executive a significant amount of flexibility in carrying out Ireland’s foreign policy, perhaps because the courts were understandably wary of deciding delicate political questions such as whether the Afghanistan conflict (in Dubsky) constituted a war, not to mention the ramifications for the separation of powers.

Wording and interpretation of a neutrality provision

The Neutrality Bill 2016 purported to do two things: amend the text of Article 28.3.1, and add an extra provision to Article 29.2. To the general prohibition on declaration of or participation in war already present in Article 28.3.1, this amendment would add a prohibition on “aiding” foreign powers in any way in “preparation” or “conduct” of war or armed conflict, save with parliamentary assent. This would significantly widen the scope of the Article: although “aiding” and “preparation” are left undefined, one imagines that courts would be forced to construe the sort of aid provided in Dubsky and Horgan as prima facie barred by the Article, being that refuelling services for military aircraft are very clearly aid in preparation for war. The inclusion of “armed conflicts” that do not meet the formal definition of war is also important and would have allowed the plaintiff in Dubsky to succeed. However, the plaintiff in 12

The Nation, the Nature of the State & International Relations Horgan would likely have failed regardless, as the amended Article would still allow any of its prohibited actions to be saved by the “assent of Dáil Éireann”: the legislature is given key decision-making power here, and the executive is sidelined. The amendment would also add a second paragraph to Article 29.2, affirming that Ireland is a “neutral state”, and, “to this end”, requiring the State to “maintain a policy of non-membership of military alliances”. It is unclear whether the use of “to this end” would constrain the ramifications of being a “neutral state” under this Article solely to “nonmembership of military alliances”. What constitutes a “military alliance” is also uncertain and must be defined by the courts. Either way, once these definitions have been teased out, it is clear that neither the executive nor the legislature would be granted any room to manoeuvre

within them by this amendment.

What effects would this have? Firstly, Ireland would probably be able to retain a capacity for selfdefence. The much stricter neutrality requirement in Article 9 of the

Japanese Constitution was ruled not to prohibit the existence of selfdefence forces in the Sunakawa case, so the less severe wording of the 2016 Bill would likely operate in the same way. Furthermore, it is doubtful that UN peacekeeping operations carried out by Irish Army soldiers would be prohibited. It is conceivable that individual operations could be restricted if they were likely to result in “armed conflict”, but this restriction would only apply if Dáil Éireann did not assent to the 13

80 Years of Bunreacht na hÉireann operation. It seems likely that the courts would refuse to classify UN peacekeeping forces as “military alliances” for the purposes of Article 29.2, out of policy considerations and deference to the executive. What, then, would Ireland be prohibited from doing if this amendment were to pass? It is obvious that this would prohibit Ireland from joining explicit military alliances such as NATO, or participating in any future “EU army” project. Despite the fears surrounding the Permanent Structured Cooperation (PESCO) initiative, only commitment 12 of the notification (concerning the deployment of EU Battlegroups) could realistically be objected to under this amendment: Jean-Claude Juncker’s wishes notwithstanding, PESCO is not an EU army and most of Ireland’s commitments under would not be barred by a neutrality provision in the Constitution. It is interesting to note that despite the emphasis in the case-law on deference to the executive, the Neutrality Bill sought to alter this dynamic. In the amended Article 28.3.1, Dáil Éireann retains its power to assent to policies that breach the requirements in this clause, thus remaining a barrier to executive action in this regard. On balance, the executive branch’s power is relatively weaker, because while the

amended Article 29.2 prevents any branch of government from allowing Ireland to enter “military alliances”, this power has been traditionally reserved to the executive and so it is comparatively more affected than the legislature. This may appear to sound the “separation of powers” alarm, as the courts would then be empowered through their role as interpreters of the Constitution to veto executive policy that threatened to violate Constitutional neutrality. However, the executive power as 14

The Nation, the Nature of the State & International Relations contained in Article 28.2, derives from the people ultimately (who would be the ones responsible for voting in a neutrality amendment), per Article 6.1, and is exercisable only in accordance with the Constitution. As such, this is an acceptable restriction on the powers of the executive.

Conclusion Ultimately, a neutrality amendment would not drastically change Irish foreign policy as it currently exists, except for situations like that in

Dubsky. However, its strict wording would make it almost impossible for a future executive to stretch the limits of the policy any further. If, as some fear, Ireland is embarking on a slippery slope in moving away from strict neutrality, this amendment would halt such a process and allow

the courts to hold the government to a higher standard in preserving neutrality.

80 Years of Bunreacht na hÉireann

Article 29: A Means to an End, or an End in Itself: To what Extent does EU Membership Compromise Constitutional Sovereignty? Éire Dempsey

A Brief History: Ireland’s Accession into the EU; In May 1950, the first stage of the development of the European Union began with the establishment of the European Coal and Steel Community (ECSC) under the Schuman Declaration. The second stage was commenced in 1957 when the Common Market was established under Treaty of Rome. Official negotiations opened between Ireland and the European Economic Committee (EEC) Members in 1970. By this point, the decision to establish a European Monetary Market and to increase foreign policy coordination had been made. On the 19th of January 1972, final negotiations took place and all outstanding problems were declared resolved. Ireland acceded into the EEC on the 22nd of January 1972.

The Third Amendment of the Irish Constitution and Article 29: Several pivotal conflicts now arose between Community Law and the Constitution of Ireland as to who exercised power within the State. At a basic level, Article 6 of the Constitution provides that legislative, executive and judicial powers can only be exercised by the bodies 16

The Nation, the Nature of the State & International Relations established by the Constitution. However, the Treaties establishing the European Communities contemplated these powers being exercised by Community bodies. Article 15.2 of the Constitution establishes that only the Oireachtas has the power to create laws for the country while the establishing Treaties vest legislative power in the Council of Ministers and Commission. Articles of the Irish Constitution 34-38 establish that only courts established in accordance with the Constitution may administer justice with the final court of appeal being the Supreme Court. However, membership of the European Communities would require the State to recognise the jurisdiction of the Court of Justice of the European Communities. To mitigate the effects of these conflicts a referendum would be required. There were two possible drafting choices. The first was to

amend every provision which might have been contrary to European Community Law. This would have proved a difficult task and would have resulted in considerable legal uncertainty. The second was to attempt, in the form of a single provision, to mitigate all possible conflicts between Constitutional and European Community Law. On 10th May 1972, a referendum was put to the people of Ireland. The

3rd amendment was approved by 83% and inserted the then-Article 29.4 into the Constitution. The Article allowed for the State to become a Member of the ECSC, the EEC and the European Atomic Energy Community, and provided that â&#x20AC;&#x153;no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the Communities or institutions thereof, from having the force of law in the State.â&#x20AC;? 17

80 Years of Bunreacht na hĂ&#x2030;ireann The 3rd Amendment enabled the State to join the European Communities, however, it did not give the State a carte blanche to join different Communities. If any of the Communities were to be subject to Treaties which fundamentally altered their scope or objectives, a new referendum would be needed for a new permission by the people to join that Community. This happened on several occasions, most recently on 2nd October 2009, when the Twenty-Eighth Amendment of the Constitution was passed, allowing the State to ratify the Treaty of Lisbon. The Amendment repealed Article 29.4 in its entirety and replaced it with new provisions allowing for the ratification of the Treaty of Lisbon, providing that, under Art. 29.4.6: No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the

entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted byâ&#x20AC;&#x201D; i.

the said European Union or the European Atomic Energy

Community, or by institutions thereof, ii.

the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or

iii.

bodies competent under the treaties referred to in this section, 18

The Nation, the Nature of the State & International Relations

from having the force of law in the State.

The effects of Article 29; A compromise of sovereignty? From its conception, considerable debate has ensued as to what the

ultimate effect of Article 29 is. To appreciate the potential effects of the Article it is important to understand that Union law applies within both the Union and the national legal systems of the Member States. There is, therefore, a minimum of two sources of law operating at one time with respect to any given activity within a Member State. Of course, this leads to a potential for conflicts between those two sources of law. It is useful then to consider how conflicts of law within the national system are resolved. Firstly, there is a hierarchy of laws. Secondly, where there is a conflict in laws which are of equal importance, the later prevails over the earlier. So, what happens where a Union law conflicts with a Constitutional law? From the point of view of the Union, Union law takes precedence over all national laws. This has been expounded by the Court of Justice a number time in cases such as Van Gend en Loos [1963] and Costa v ENEL [1964], where the Court of Justice has expressed its view that Union membership entails a limiting of sovereign rights of the Member States and its citizens, and that to allow Member States to incorporate Union laws into their legal systems subject to national laws would be to deprive the Union of its character, calling the â&#x20AC;&#x2DC;legal character of the Community itself into questionâ&#x20AC;&#x2122;. The Court of Justice reiterated this 19

80 Years of Bunreacht na hÉireann sentiment in the landmark decision given in Simmenthal [1978] where it was unequivocally stated that Community law takes precedence over national Constitutional law. Therefore, from the perspective of the Union, Union law must always prevail. To a large extent, Article 29 aligns itself with the view of the Court of Justice and will effectively mitigate any Constitutional measure contrary to Union law. Not only does it provide that no provision of the Constitution will invalidate laws enacted by the Union or its institutions, but it also establishes that no provision of the Constitution will invalidate a measure adopted by the State once it can be established that the measure is necessitated by some obligation of Union membership. However, to what extent the application of this doctrine will reach is not yet certain. Early Irish case law on the matter appeared to be closely

following the Court of Justice’s view that Union law must always prevail. Costello J in Pigs and Bacon Commission v McCarron [1978] held that community law requires “that it takes effect in the Irish Legal system in the manner in which it itself provides.” This statement appears to unequivocally establish that Union law takes precedence over national Constitutional law. However, it has been suggested that Costello J was not fully aware of the potential consequences of such a statement as the judgement was delivered only a few months prior to the landmark

Simmenthal decision discussed above, which expressly stated that Community law takes precedence over national Constitutional law. Thus, the Irish courts had, whether intentionally or not, accepted precedence of Union law over Constitutional law.

The Nation, the Nature of the State & International Relations The current position: Union law and fundamental rights: To what extent it can be said that the Irish Courts can still be regarded as considering Union law as having supremacy over Irish Constitutional law is unclear although it is considered that the effect of the decision given in Pigs and Bacon Commission v McCarron [1978] has been since considerably diminished. The Courts have shown a marked reluctance to unequivocally accept Union law precedence of Constitutional law where fundamental rights are at stake. This was highlighted in SPUC v Grogan [1989], a case which concerned the Irish Constitutional right to the life of the unborn as protected under Article 40.3.3 and the European Community law right to receive services and information concerning service; a right which was developed through case law of the Court of Justice. This was the first case of its kind where a private party sought to

avoid the restraints on its freedom which arose as a result of the constitutional rights enjoyed by another via European Community Law. According to Walsh J in that case, certain fundamental rights can never be disapplied in favour of a contravening EU law. As he put it â&#x20AC;&#x2DC;it cannot be one of the objectives of the European Communities that a Member State should be obliged to permit activities which are clearly designed to set at nought the constitutional guarantee for the protection within the State of a fundamental right.â&#x20AC;&#x2122; While it is not possible to say with certainty what the effect of this statement will be, it may considered be that Article 29 will, to a large extent, negate contrary Constitutional provisions, but with a line being drawn where there is a potential breach of fundamental rights.

80 Years of Bunreacht na hÉireann

Financial Regulation and the Democratic State Adrianna Keenan

At a time when our world is becoming increasingly ruled by the business elite and commercial interests, there is a pressing need for a culture of legal enforcement and appropriate procedural safeguards in the business sphere. Legal reform was called for in a number of areas following the financial crisis of 2008, and although much of the regulatory framework has seen restructuring, issues which have yet to be addressed still remain. Established following the enactment of the Central Bank Act 1942, the Irish State’s financial regulator is the Central

Bank of Ireland. One of the Bank’s core principles is the primacy of the public interest. This echoes the words of our constitution’s democratic overtones. In the recent past, Ireland’s corporate culture was traditionally one of legal

non-compliance

with

regulations

rarely

being

enforced.

Prosecutions were infrequent, and there is no record of any company officer having received a custodial sentence for breach of the Companies Acts prior to 1990. Our new, compliance-oriented model of corporate enforcement aims to educate corporate officers about their legal duties and obligations, as well as encouraging the remediation of wrongdoing. However, criminal prosecution on indictment still remains the sanction of last resort and in practice, civil sanctions are generally seen as the most useful route to recourse. it is vital that regulators be seen by the 22

The Nation, the Nature of the State & International Relations corporate population to wield such power. The principle of proportionality, a main tenet of financial regulation, provides real credibility to authorities such as the Office of the Director of Corporate Enforcement and the Central Bank. The use of civil sanctions to realise as powerful a deterrent effect as criminal prosecutions requires an examination of the appropriateness of the procedural safeguards which our constitution provides to those accused of breaching company law. The Ireland in which we live today is very different to that which existed in 1937. In the aftermath of the financial crisis, the direction taken by the courts in sentencing white collar criminals has differed from their approach towards what one might call â&#x20AC;&#x2DC;conventionalâ&#x20AC;&#x2122; crime. Instead of tailoring punishment to the particular circumstances of the offence and the offender, the courts now focus more on the wider harm caused by

the offence. Certain mitigating factors, which reduce the severity of the punishment, tend to be common among white collar criminals. Having a good character and an absence of previous convictions therefore tends to benefit the offender. However, looking at the impact of the criminality alone, without considering any mitigating factors, is quite a controversial move and does not necessarily reflect the constitutionâ&#x20AC;&#x2122;s prescription of trial in due course of law or the enshrined right to a good name. While such factors may indeed favour white collar criminals to an extent, they cannot be totally ignored and must be given some weight. The courts have grappled with this contradictory notion on a number of occasions, most notably in DPP v Murray and DPP v Begley. However, it can be a frustrating exercise to determine the degree to which these

80 Years of Bunreacht na hĂ&#x2030;ireann mitigating factors should be considered, such that no constitutional right is infringed and that no corporate offender gets away too lightly. Criminal sanctions, as stated earlier, are the option of last resort. Civil sanctions, on the other hand, are being enforced much more frequently and without the constitutional ambiguity that prosecution on indictment can bring. The Companies Act 2014 introduced a novel four-tier system of offences for corporate officers. Civil financial sanctions are most appropriate where corporate conduct breaches legislation but where criminal prosecution would be excessively harsh on the offenderâ&#x20AC;&#x2122;s rights and interests. The democratic nature of the state requires that, where a civil financial sanction is adopted which has an adverse impact on the personâ&#x20AC;&#x2122;s fundamental rights, the measure must be proportionate to the extent of non-compliance. This principle was reiterated by McKechnie J

in DPP v Duffy & Anor. A number of constitutional issues have therefore emerged on foot of the provision for civil financial sanctions. Concerns have arisen as to whether such sanctions are repugnant to the provisions of the constitution, particularly in relation to Article 38.1: the right to a fair trial in due course of law. It has been noted that particularly severe civil

financial sanctions may bring with them the ramifications and punitive effect of a criminal sanction. In light of this, could the imposition of such a sanction require the procedural safeguards that are associated with criminal proceedings, such as the requirement of proof beyond reasonable doubt?

The Nation, the Nature of the State & International Relations The Supreme Court has, on a number of occasions, examined this question. In the 1989 case of McLoughlin v Tuite, the Court held that such financial penalties were civil in nature and enforceable in civil courts with civil procedural safeguards. The basis of the categorisation of such a sanction as being civil, rather than criminal in nature, was traced back to the infamous decision of Melling v Ă&#x201C; Mathgamhna. There, it was held by Kingsmill Moore J, that even if a financial penalty had such a deterrent effect that it could be regarded as being punitive in nature, such deterrence was not, in itself, sufficient to render it criminal. It would

therefore

seem

that

alleged

offenders,

despite

their

constitutionally protected good name being jeopardised, would not be able to avail of such procedural safeguards. Above all, however, it is clear that the contemporary methods of

enforcing white collar crime in Ireland must remain consistent with the democratic foundation of our state. Paul Appleby, former Director of Corporate Enforcement, adopted the position that civil enforcement actions were to be preferred to summary prosecutions or referrals to the Director of Public Prosecutions. In recent years this has led to a much higher proportion of restriction and disqualification orders being made, while not a single summary conviction was made for white collar crime in 2016. The Central Bank recommends that accountability of senior executives within companies should be strengthened, as well as the retrospective application of the fitness and probity test. Currently, there

clear

shift

towards

encouraging

compliance

and

administrative action, rather than criminal sanctioning. But a carrot cannot fulfil its role without the threat of the stick; there must be a 25

80 Years of Bunreacht na hĂ&#x2030;ireann willingness on behalf of our regulatory bodies to pursue aggressive remedial action when it is warranted.

The Dáil, the Seanad and the President

The Dáil, the Seanad and the President ______________________________________ The Election, and Constitutional role of, Uachtarán na hÉireann Mark O’Brien O’Reilly

As the presidency of Michael D. Higgins draws to its close, we are faced with the prospect of a Presidential election later this year. President Higgins, should he choose to do so, may nominate himself for a second term, in line

with Article 12.4 of the Constitution, and this, in the absence of any other nominated candidate, would forgo the need for an election. This last happened in 2004 when President McAleese, was returned, unopposed, to office. The path to a second Higgins’ term in the Áras does not look to be without opposition, with possible candidates proffering their intention to run. Should one of these candidates satisfy the Constitutional provisions governing their nomination for the office, then an election will be required. 27

80 Years of Bunreacht na hÉireann This article will examine the Constitutional provisions which govern the nomination, election and the role of Uachtarán na hÉireann. The office of the President is governed by Articles 12 to 14 of Bunreacht na hÉireann. Article 12 provides that the holder of the office shall serve a seven -year term; that they may serve no more than two terms of office, and that an individual must be at least thirty-five years old to be eligible to serve as President. This is one of the few instances in the Constitution where there is a divergence between the English and Irish version. The English language version states that “every citizen who has reached his thirty-fifth year of age

is eligible for election to the office of President.” The Irish language version, however, states “gach saoránach ag a bhfuil cúig bliana tríochad slán, is

intofa chun oifig an uachtaráin é”. The English version would deem a person who is in their thirty-fifth year, but still thirty-four, eligible to serve as President, while the Irish version states that a potential candidate must have completed their thirty-fifth year. The primacy of the Irish language, however, means it is the Irish version that takes precedence. In 2015, the electorate rejected a referendum which proposed a reduction in that minimum age to 21. Article 12 also sets out the various ways in which a candidate may secure a nomination to run in a Presidential election, which, as per Article 12.3.3, must be held “not later than [the end of the incumbent’s term], and not

earlier than the sixtieth day before’ the expiration of the incumbent’s term of office, or within sixty days of their death, resignation, or permanent incapacity.” A potential candidate must be nominated either by twenty members of the Houses of the Oireachtas, or by four County Councils. The nomination by four County Councils is often a way for candidates who lack

the support of a political party to enter the race for the Áras. As referred to 28

The Dáil, the Seanad and the President earlier, an incumbent, or indeed a former President, may become a candidate on their “own nomination”, per Article 12.4.4, provided they have only served one term of office. Should there only be one nominated candidate, then per Article 12.4.5, there is no need for an election to take place, and they shall accede to the office. The Presidential Elections Act, 1993 governs the way Presidential Elections are held, such as how the poll shall be carried out, and the votes counted. Once an individual has been elected, the President exercises and performs “the powers and functions conferred on the President” by the Constitution, and by the law. As Head of State, the role of the President of Ireland has more in common with a constitutional monarchy than that of an executive presidency, such as the role of the President of the United States of America. Article 13.5.1 provides that the Supreme Commander of the Armed Forces shall be the President, while Article 13.2.1 provides that the President, acting on the advice of the Taoiseach, has the power to summon, and dissolve, the Dáil. The President, in accordance with Article 2.2, may refuse to dissolve the Dáil if the Taoiseach, on whose advice they act, no longer commands the support of a majority of the Dáil. The President, on the nomination of the Dáil, and in line with Article 13.1, appoints the Taoiseach, and on the Taoiseach’s advice, as per Article 13.1.2, appoints members of the Government. The President’s powers also extend to the acceptance of ministerial resignations, and the appointment of members of the judiciary. Article 13.3 requires that any Bill passed by the Houses of the Oireachtas, must first be signed by the President before it becomes law. That raises the question, what if a President decides to withhold their signature? The 29

80 Years of Bunreacht na hÉireann circumstances in which this has been an issue have been limited, but the fallout quite often dramatic. The circumstances surrounding the resignation of Cearbhall Ó Dálaigh, Ireland’s fifth President, in 1976 are a notable example. Article 26 provides for a referral procedure, under which a President who has concerns about the potential unconstitutionality of a Bill, or who wishes to ensure a Bill is immune to Constitutional challenge should it become law, after conferring with the Council of State, may refer the Bill

to the Supreme Court for a decision on the question of the Constitutionality of the Bill. If the answer to the referral upholds the Constitutionality of the Bill in question, then the President must sign the Bill. If the Supreme Court, however, deems the Bill to be unconstitutional, then the President will withhold their signature, and the Bill will be sent back to the Houses of the Oireachtas. This means that in practice the ability of a President to refuse to sign a Bill is limited by the Constitution. This is an example of one of the few discretionary powers of the office, the exercise of which first requires Consultation with the Council of State. It is an especially important function of the office, and one which Presidents have been reluctant to use, except in exceptional circumstances. This is because if it the Bill is indeed found to be constitutional, the specific provisions which have been the subject of the referral can never again be challenged on constitutional grounds. Article 31.1 provides for the establishment of the Council of State which has other important constitutional roles, such as temporarily exercising the powers of the office of President in circumstances where neither the President, or the Presidential Commission, is capable of doing so. The President, in accordance with Article 31.3, personally appoints up to 7 members, while the holders of other offices, such as the Ceann Comhairle, are ex-officio members. Former Presidents, Taoisigh, and Chief Justices also 30

The Dรกil, the Seanad and the President serve as members. The office is limited by the Constitution in other ways, with the President requiring the consent of the government before leaving the country, or making an address to the nation. In conclusion, the Constitution plays a defining role in setting out the powers of the office of President. It provides for the nomination of candidates, the carrying out of an election to fill the office, and once elected, governs the conduct of the President. It provides also for the possible impeachment of the President, and for a Presidential Commission which can fulfil the functions of the office during the absence of, or the incapacity of, the President of Ireland. As the First Citizen, the role of the President is, to some extent, carefully controlled by the provisions of the Constitution. When compared to similar roles in other jurisdictions, the power of the President of Ireland is especially limited. This is because the Constitution is very much a product of the times in which it was drafted, and reflects a desire to avoid circumstances in which a holder of the office would be able to wield excessive powers.

80 Years of Bunreacht na hÉireann

The Constitution, the Oireachtas and Public Inquiries: A Recipe for Disaster? Stephen Lahert

At the landmark of 80 years since the enactment of the Constitution, this article aims to discuss the immense influence that Bunreacht na hÉireann has had on the effectiveness of public inquiries. The following points will be addressed in this article: the purpose of any given inquiry, how they operate, Article 15 constraints on inquiries and the separation of powers, recommendations of the Law Reform Commission in 2005 and the proposed Thirtieth Amendment to the Constitution. As the article

progresses, examples of previous inquiries ranging from the beef industry to the banking sector will illustrate the impact of public inquiries. Inquiries are investigations established in order to uncover the truth. They are set up by the Oireachtas and are removed from the judicial aspect of the tripartite separation of powers. The Constitution has been interpreted to limit the powers of public inquiries due to two main components: the

separation of powers and Article 15. In Maguire v Ardagh (the Abbeylara case), the Supreme Court interpreted the Constitution as limiting the powers of public inquiries with specific reference to the separation of powers. It was held that the Oireachtas could not exercise a “quasi-judicial” function by making statements of facts adverse to the reputation of any citizen.

The Dáil, the Seanad and the President When analysing the constraints that the Constitution places on public inquiries, Article 15 must be referenced. The purpose of this Article is to outline the constitutional powers that the national parliament possesses. These powers are not exhaustive, but the Court stated in Haughey v

Moriarty that ‘these powers and the exercise thereof may, of course, be limited by the provisions of the Constitution’. It is ultimately a matter for the judiciary to rule on findings of fact, in a criminal and civil nature as

‘committees of inquiry are, by virtue of their role and function, part of the political process’. A tribunal of inquiry which is currently ongoing is that of the Disclosures Tribunal. It has been set up under broad terms of reference to investigate allegations of varying nature concerning An Garda Síochána, the Garda whistle-blower Maurice McCabe and other entities of the state. It is imperative that constitutional rights are protected at the tribunal as the findings of the tribunal will have a serious impact on the public’s trust in law enforcement within the state, the state’s treatment of whistle-blowers and the credibility of allegations made by Maurice McCabe. There are effectively two types of public inquiry: tribunals and commissions of investigation. The statutory basis for tribunals of inquiry may be found in the Tribunals of Inquiry (Evidence) Act 1921, while the statute concerning the latter is the Commissions of Investigation Act 2004. The Law Reform Commission (LRC) in 2005 noted that tribunals of inquiry are more expensive and time-consuming, but have greater scope to crossexamine witnesses, enabling tribunals to make more specific findings than Commissions of Investigation. The LRC, in its report, recommends that tribunal of inquiry legislation be amended to state that “Tribunals of Inquiry 33

80 Years of Bunreacht na hÉireann have no power to determine or to rule on, any person’s civil or criminal liability.” This recommendation is clearly made in light of the constitutional interpretation of the superior courts. The Thirtieth Amendment of the Constitution Bill 2011 proposed to reverse the Abbeylara decision by granting Oireachtas committees full power to conduct public inquiries. These powers included the proposed Article 15.10.3 which asserts that “the House or Houses may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.” This, in effect, would have granted the Oireachtas constitutional support in carrying out inquiries. The proposal was rejected by citizens at referendum and therefore Article 15 of the Constitution remained the same. A key concern regarding the wording of the amendment is to be found in Art 15.10.4 of the proposed text

which states that it shall be for the Oireachtas to determine “the appropriate balance between the rights of persons and the public interest.” This is a provision which could be interpreted as granting the Oireachtas excessive powers contradicting the checks and balances system that is supported by the separation of powers. There have been many criticisms levelled against the use of public tribunals.

The primary criticism is the cost associated with running tribunals: The Mahon tribunal is estimated to have cost in excess of €158 million with a significant amount of that being paid to the 706 senior counsels, 1180 junior counsels and 1759 solicitors who worked throughout the 917 days of the tribunal. With figures like these, the assertions of detractors that public inquiries are merely designed to benefit the legal profession inevitably gain support. Other objections include the fact that evidence given to tribunals 34

The Dáil, the Seanad and the President can’t be produced in a criminal case in a court due to Article 34.1 of the Constitution which expressly states that “justice shall be administered in courts established by law”. Therefore, the findings of tribunals are essentially legally sterile in a criminal sense. It must be acknowledged, however, that public inquiries are useful mechanisms to determine findings of fact. Tribunals of inquiry are inquisitorial in nature as stated by Denham J in Boyhan v Beef Tribunal. This means that they are concerned with making findings of fact in matters which are of urgent public concern. Although they cannot determine any person’s civil or criminal liability, as per the decision of the Supreme Court in Goodman International v Hamilton, this does not prevent tribunals from making findings or recommendations. The Law Reform Commission states that tribunals of inquiry may be used to “learn from what happened...to establish accountability” and “to provide reassurance” to the public, although the effectiveness of tribunals in establishing accountability has been questionable in their numerous appearances in the last century. It must be noted that Commissions of Investigations are a cheaper alternative as previously referred to in this article. Tribunals have been a political nightmare for public representatives, resulting, for example, in the resignation of the then-Taoiseach Bertie Ahern in 2008 after his appearance at the Mahon Tribunal. Therefore, it could be argued that despite the lack of legal ramifications for those who appear before them, there are certainly political repercussions. To conclude, public inquiries have been and will continue to be at the centre of Irish political and legal life for the foreseeable future. As mentioned previously, the Disclosures Tribunal is currently ongoing and we are still 35

80 Years of Bunreacht na hĂ&#x2030;ireann awaiting final reports for the most recent three commissions of investigations into the Mother and Baby Homes, the Irish Bank Resolution Corporation and the Farrelly Commission. Undoubtedly, media attention will remain focused on the findings of these commissions and the evidence given to the Disclosures Tribunal. It is clear, however, that the current form which public inquiries take is restrictive, costly and inefficient. It is difficult to see any reforms being made in the immediate future, following the failure of the 2011 Referendum. This is particularly disappointing as we reflect on 80 years since the introduction of our Constitution.

The Dรกil, the Seanad and the President

Article 26: Testing the Untried Daniel Forde

Charles de Montesquieu once wrote that unless the power of judging was separate from the legislative and executive power, a state could not fully

have liberty. Article 26 enshrines this principle in our Constitution by permitting judges to assess whether a Bill is constitutional or not, prior to it being signed into law. This provision is advantageous as it prevents the Oireachtas passing constitutionally repugnant laws. Although Article 26 is crucial to the separation of powers, this does not mean it functions flawlessly. The provision raises numerous issues, the most notable of which are the effect of repugnancy and any provision or provisions subsequent permanent immunity from challenge on constitutional grounds. While Article 26 has only been applied 15 times in its 80-year existence, these issues merit serious attention. Article 26 remains a significant safeguard against unconstitutional action and it must function properly in order to be fully effective. While Article 26 is undoubtedly beneficial, we must scrutinise whether its problems outweigh its advantages. At the time of its introduction, Article 26 was a major innovation within the 1937 Irish Constitution. No equivalent procedure existed in the 1922 Constitution, nor in the British Parliamentary system. The closest thing it had to a predecessor was s.51 of the Government of Ireland Act 1920. Article 26 is a check on the legislative power of the Oireachtas. It empowers the judiciary to prevent the legislature from enacting unconstitutional legislation. If the President refers a bill for inspection, it shall be referred 37

80 Years of Bunreacht na hĂ&#x2030;ireann instantly to the Supreme Court where a minimum of five judges will determine if it is constitutionally robust or not. The original jurisdiction of the court, and the number of judges indicate that this procedure is highly important. Similar procedures have been inserted into the Canadian, German and French consitutions, underlining how useful this referral can be. One source of difficulty within Article 26 is the effect of pronouncing a bill repugnant. Typically, if the court finds a bill unconstitutional the President cannot sign it into law. But this means that even if one minor provision is invalid, the entire Bill fails. Debate has occurred over whether the Court should fully explain which exact sections of a bill are unconstitutional and which ones are acceptable. In the Housing (Private Rented Dwellings) Bill case the Supreme Court limited its responsibility to solely determining if the bill passed the unconstitutionality test. Finlay CJ later concurred with this stance in Re Article 26 and the Matrimonial Home Bill 1993. Hamilton CJ departed from this view in Re Employment Equality Bill 1996, ruling that the Court must consider the whole bill and state which exact parts are unconstitutional, for two specific reasons. Firstly Article 26.1.1 empowered the President to refer specific provisions of a bill for consideration. Secondly Hamilton CJ shrewdly noted that failure to give a full picture of the Billâ&#x20AC;&#x2122;s defects would likely result in more deliberation and more possible Article 26 referrals. Since this decision however the court has effectively abandoned this approach, declining to consider an entire bill in the Equal

Status Bill 1997 case. This author opines that the court ought to take on a more advisory role, and explicitly outline all the unconstitutional parts of a Bill. Doing so will prevent the Oireachtas from having to redraft legislation and present it to the Courts once again. This would save the courts more 38

The Dรกil, the Seanad and the President time in the future. However, the worry is that this may see legislators attempting

enact

legislation

which

they

recognise

may

unconstitutional but will allow it to be referred so that the constitutional limits to their legislative powers can be elucidated. One other problem that Article 26 raises is the permanent immunity of an approved Bill. This creates a more drastic challenge. If a referred Bill is upheld, then Article 34.3.3 complicates matters by making that Bill immune from later constitutional challenge. Later situations may therefore arise where enacted legislation appears constitutionally objectionable but cannot be re-appraised. This happened in the Emergency Powers Bill 1976 case, where the court commented that the 7-day arrest within the Offences Against the State (Amendment) Act 1940 was unconstitutional, but as that law had been passed under an Article 26 reference, the court could not overturn it. Whenever a bill is referred the Court will try to consider all possible consequences of enacting the bill, but any analysis will be primarily hypothetical. While the judiciary may foresee a wide range of legal consequences, they cannot possibly foresee all of them. This subsequent silencing of all legal challenges is the most likely reason why Article 26 has been used so sparingly. The Constitution Review Group recommended that Article 34.3.3 be deleted, saying that it was a large obstacle in properly applying Article 26. Deleting the provision would have few significant consequences outside of the procedure. The Supreme Court would also still have binding authority over the lower courts afterwards. The Constitution Review Group asserted that Article 26 was a convenient procedure. Article 26 is still far from perfect, however, and its problems continue to hinder the referral procedure.

80 Years of Bunreacht na hÉireann

Is the Dáil a ‘Puny’ Parliament? Brian Owens

The relationship between the legislature and the executive has been the subject of decades-long debate. The late Basil Chubb described the Dáil as a

“puny parliament”. In recent years, successive reports have highlighted the dominance of the executive over the legislature. This characterisation of a ‘puny parliament’ stands contrary to Article 28.4.1 of the Irish Constitution. This Article reads “The Government shall be responsible to Dáil Éireann”. During the banking inquiry, Professor David Farrell described the idea of the executive being held to account by Oireachtas as “a constitutional fallacy”. Recent reforms, under the so-called era of ‘New Politics’, have been lauded for seeking to address the imbalance between the legislature and the executive. This article will discuss whether the legislature holds the government to account, or if the relationship between the executive and the legislature is unevenly tipped in favour of the executive. It will further examine whether recent reforms have addressed any imbalance. The Dáil, which Art 15 refers to as a ‘House of Representatives’ consists of 158 directly elected representatives, TDs. The Taoiseach is nominated by the Dáil for appointment by the President in accordance with Article 13.1.1, who in turn selects TDs to become members of cabinet. It is worth noting that Article 28.7.2 permits two members of Seanad Éireann to be appointed to cabinet, though in reality that rarely occurs. The government and legislature are fused together. Normally, the government has a majority

which dictates the results of any vote taken in either chamber. 40

This

The Dáil, the Seanad and the President majority could take the form of a single party majority governments or, as in recent years, coalition governments which allows the government to control the agenda, guillotine votes and ensure the passage of Bills. There appears to be a strengthening of the role of legislature in holding the government to account, however, that could be solely attributed to the minority situation in the Dáil. Constitutionally, the President has the power to appoint the Taoiseach after she/he has been nominated by Dáil Éireann. Other duties given to the President include the power to dissolve the Dáil, appoint ministers after their nomination has been approved by the Dáil, accept the resignation of or terminate the holding of office of any member of the government. All these actions must be taken on the advice of the Taoiseach, but the President does not have to agree to dissolution in certain circumstances. The Constitution permits the President in his/her absolute discretion to refuse to dissolve the Dáil on the advice of a Taoiseach who has failed to obtain a majority. The power of the Taoiseach in the past regarding dissolutions and appointments/terminations of ministers was backed up by parliamentary majority. After the 2016 General Election, none of the parties had a large majority to command parliament. The inability of the Dáil to nominate a Taoiseach demonstrated the changing situation in the Dáil. The largest party could not command the house as they did not hold a majority. The resulting confidence and supply agreement and minority government situation in the Dáil showcased the changing relationship between the legislature and the executive. In the past, the agenda setting ability was the prerogative of the executive, which meant that they controlled the parliamentary agenda, the length of

debates and the results of votes due to their inbuilt majority. The 41

80 Years of Bunreacht na hÉireann centralised control of the agenda by the government led to the Dáil acting as a rubberstamp for government policy with little or no input from noncabinet legislators. The negotiations to form a government in 2016 resulted in the establishment of the Business Committee. This committee allows legislators to set the weekly agenda rather than the government. A significant impact of the Business Committee is that it has given greater control over parliament to the TDs and reduced the risk of the imposition of

a unilateral guillotine on a debate. This gives members a greater platform to question ministers. Article 15.2.1 of the Irish Constitution states that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas”. Recent reforms show the legislature making ground on the legislative front such as the introduction of pre-legislative scrutiny which obliged ministers to publish general schemes of bills in advance of the legislative process. It has been mooted that pre-legislative scrutiny be extended to opposition bills. The pre-legislative scrutiny procedure allows the legislature to play a greater role in influencing legislation which enhances its ability to influence government. Removing the limit on technical groups and enhancing their ability to propose legislation recommended by a Dáil sub-committee is another example of a move towards allowing parliament to fulfil its constitutional role. Article 21.1.1° of the Constitution states that “Money Bills shall be initiated in Dáil Éireann only”. This situation secures financial control in the hands of the deputies in Dáil Éireann. The Constitution further adds that no vote or no law shall be enacted, for the appropriation of revenue or other public moneys unless recommended by the government via message signed by the

Taoiseach. The influence of the government over the budgetary process is 42

The Dáil, the Seanad and the President still a reality. However, the recently established Budgetary Oversight Committee has given parliament more of a role in the budgetary process. They scrutinise and discuss aspects of macroeconomic policy. The government agreed to release information to the Committee to enhance their ability to scrutinise the budgetary process, such as circulating tax papers. The ability of parliament to access this information is important and the willingness of the government to allow debate is a key development

in the realignment of the relationship between the legislature and the executive. Despite some criticism over the speed of legislation being passed, the relationship between the executive and legislature appears to be changing. Reforms of recent Dáileanna have created a structure to allow the legislature to fulfil its role as under Article 28.4.1. Although the impact of these reforms needs to be analysed over a longer period, Basil Chubb’s label of a “puny parliament” appears to be losing its significance.

80 Years of Bunreacht na hÉireann

The Courts, Fundamental

Rights & Rights of the Accused ____________________________________ Article 34.1: The Public Administration of

Justice Nessa Denihan

Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. - Jeremy Bentham Article 34.1 of Bunreacht na hÉireann states, inter alia, that except in “such special and limited cases as may be prescribed by law”, justice shall be administered in public. This was presumably designed to foster confidence and transparency in the court system. 44

The Courts, Fundamental Rights & Rights of the Accused Irish Times Ltd v Ireland involved a challenge to a ban on contemporaneous reporting of a criminal trial. It was alleged that the trial judge had acted without due consideration for the right of the press to freedom of expression and the right of the public to receive information. In a decision later overturned by the Supreme Court, Morris J. of the High Court reasoned that the trial judge was aware of the termination of a 1996 drug prosecution following inaccurate reporting by the press and that the instant case had been subject to significant media interest as it involved a historical seizure of cocaine. The Supreme Court unanimously ruled that the public’s access to the administration of justice in the courts as underpinned by Article 34.1 was central to the State’s democratic spirit. The limitations imposed by Murphy J. were interpreted as infringing on the public’s ability to see

and hear justice being done. Commentators such as Doyle have noted that several judges drew attention to the overlap with the concept of freedom of expression, which suggested that the dichotomy between the communication of opinion and information may not be so fixed. However, both the legislature and the courts themselves were held to possess the ability to limit the exercise of the rights conferred by Article

34.1, if necessary to protect the accused’s superior constitutional right to a fair trial. The court formulated the following test that was to be applied in relevant situations. A trial judge presiding over a case must be convinced of a “real risk of an unfair trial” if contemporaneous reporting were to take place, and any potential damage would be irremediable. On this occasion, it was held that Murphy J.’s course of action was

80 Years of Bunreacht na hÉireann unjustifiable as the contempt of court procedure existed to deal with these issues. The Irish Times decision is regarded as a very robust affirmation of Article 34.1. This is echoed in Roe v Blood Transfusion Service Board &

Ors, where the plaintiff contracted Hepatitis C after being treated with contaminated blood products and was refused permission to use an assumed name in order to protect her privacy and guard her from public embarrassment. Laffoy J held that Roe’s position did not fall under the “special and limited cases” that served as express legislative exceptions to the principle of the public administration of justice. It was also observed that the Oireachtas had decided not to avail of its discretionary powers in this situation. In contrast, the opposite verdict was reached in a case concerning a severely autistic man given the assumed name Desmond for the duration of his appeal. Anonymity was granted to shield him from adverse consequences stemming from the publication of his medical condition. Desmond subsequently claimed damages for physical and psychiatric harm after his allegedly unlawful detainment under section 12 of the Mental Health Act 2001. However, this case can be

distinguished from Roe as Desmond’s position fell under section 27 of the Civil Law (Miscellaneous Proceedings) Act 2008. The Act allows application of anonymity to be granted to a party with a medical condition if the court is satisfied that to identify the individual publicly would be prejudicial and cause unjustifiable distress to the litigant.

The Courts, Fundamental Rights & Rights of the Accused Counsel for the plaintiff in the 2017 defamation case Sunday

Newspapers v Gilchrist and Rogers relied on the factually similar Mooney v The Commissioner of An Garda Síochána & Others. In Mooney, the plaintiff took an action against the Garda Commissioner because he was dissatisfied with the form of relocation and protection provided to him by the Witness Protection Programme (WPP). The High Court held that Mooney’s trial must be in camera as the disclosure of the identities of the parties involved could undermine the function of the WPP. O’Donnell J. criticised the binary approach presented to the court in

Gilchrist, noting the existence of less intrusive intermediate options, such as anonymising witnesses or releasing redacted transcripts of proceedings. These suggestions would in practice signify a departure from previous interpretations of Article 34.1. In light of Ireland’s

adversarial system of justice, the judge held that the choice was between a fully public hearing or one in camera. He then ruled that the court must extend its powers of departure from a public hearing in this instance in order to protect the lives of participants in the programme. The importance of Article 34.1 was recently stressed by O’Shea J. in the District Court in January 2018.

A member of An Garda Síochána

prevented three journalists from attending the bail hearing of a teenager charged under the Offences Against the Person Act 1861 with assault causing harm and under the Firearms Act 1925 for the possession of a knife. During a special sitting at the Criminal Courts of Justice, O’Shea J. stated he would never have knowingly permitted this exclusion, citing Clarke CJ’s comments about the need for openness and transparency in the court system. The judge suggested that the Garda involved may have 47

80 Years of Bunreacht na hÉireann conflated reporting restrictions around a children’s court hearing with the circumstances of the case in question, but indicated that practical measures, such as putting up signs, could be taken to avoid future confusion. Although the gravity of Article 34.1 has often been laboured, recent developments such as Gilchrist highlight that the court has adopted a new approach since the judgments of Irish Times and Roe. Whilst traditional antipathy towards court proceedings being held in camera may still remain, the sentiment expressed in Gilchrist is indicative of the Supreme Court’s willingness to tolerate more moderate alternatives in highly novel circumstances.

The Courts, Fundamental Rights & Rights of the Accused

The Right to Legal Advice after Arrest Rebecca Gahan

In Ireland there is a constitutional right to legal advice after arrest. In practical terms this means that when a person is arrested and brought

into Garda custody for questioning, he has the right to consult with a solicitor either in person or over the phone. Although the right to legal advice has long been considered a common law right, it was only recognised as constitutional in nature in the Supreme Court case of DPP

v Healy in 1990. There, the Court was clear that to classify it as merely a legal right would be insufficient as it would â&#x20AC;&#x2DC;undermine its importance and the completeness of the protection of it which the courts are obliged to giveâ&#x20AC;&#x2122;. From then on, a constitutional right of reasonable access to legal advice has existed. The effect of recognising this right as constitutional is that it provides the highest level of protection available in Irish law. This is of paramount importance at the trial stage of the criminal process because any evidence obtained in breach of this right, such as a confession made by the accused before he or she has been allowed to consult with a solicitor, will be excluded from the trial automatically save in exceptional circumstances or where the breach is deemed to be inadvertent or derived from subsequent legal developments as established in the case of DPP v JC.

80 Years of Bunreacht na hĂ&#x2030;ireann Another benefit to recognising this right as constitutional is that it acts as a shield against the increased interference by the legislature with the rights of the accused in relation to the criminal process. One example of such an interference with the rights of the accused is the continuing trend in increasing detention periods after arrest. For example, the Criminal Justice Act 2007 allows, for certain crimes, a maximum detention period of up to seven days. The introduction of legislation that allows for adverse inferences to be drawn from the refusal to answer certain questions is another example of interference. This directly interferes with the right to remain silent at the pre-trial stage which is an essential component of the privilege against self-incrimination. Now, more than ever, the right to legal advice after arrest is vitally important in acting as a safeguard in the criminal justice process and ensuring fairness in the interactions between a detainee and his interrogators. However, what exactly does this right encompass? What does the constitutionally enshrined guarantee of legal advice include? The courts have recognised that this right contains both a right to be informed immediately when your solicitor arrives at the Garda station and a right to immediate access to your solicitor. If you do not have a solicitor and request one to be assigned to you then they must be independent of the state and any conversations with counsel must be permitted to take place confidentially. The right to legal advice for those who cannot afford it has also been facilitated with the introduction of the Garda Station Legal Advice Scheme in 2001 which enables free access to legal advice while in custody on a means-tested basis.

The Courts, Fundamental Rights & Rights of the Accused A major turning point in relation to the limitations of this right occurred recently in the landmark Supreme Court decision of DPP v Gormley and

White. Here, the court considered whether the Irish courtsâ&#x20AC;&#x2122; interpretation of a right of reasonable access to legal advice was too restrictive. The issue was whether it was an infringement on the constitutional right of reasonable access to counsel to begin questioning before the detaineeâ&#x20AC;&#x2122;s request for legal advice had been fulfilled. Prior to this case, this had been allowed to occur but, as Clarke J noted in his judgment, if questioning could continue prior to legal advice being given it would essentially nullify the benefit of receiving such advice in the first place. This case is also significant because the court for the first time recognised the right to legal advice as emanating from Article 38.1 of the Constitution which relates to the right to a trial in due course of law. By grounding the right in Art 38.1 the court showed that the concept of basic fairness of process, which applies to a trial in due course of law, can be extended to apply at the pre-trial stage, which gives added protection to the accused during the detention and arrest stages. One aspect of the right to legal advice that the courts continue to grapple with is whether the right to legal advice extends to the right to have counsel present during questioning. In Gormley, while the court acknowledged that it was not within its remit to answer the question in this case, it did point out that in the US jurisprudence; the right to have a lawyer present during questioning has been deemed to be of paramount importance to give effect to the privilege against self-incrimination. It seemed to indicate that in the future the court may be amenable to 51

80 Years of Bunreacht na hÉireann recognising such a right in Irish law. However, when the question came to be considered in early 2017 the Supreme Court in DPP v Doyle rejected the recognition of this constitutional right. MacMenamin J, in dissent, was prepared to recognise such a right in relation to future cases and O’Malley J and O’Donnell J suggested they might be prepared to recognise such a right in the future. Most importantly, the court did note that there was currently a Code of Practice on Access to Solicitors by Persons in Garda Custody in operation that permits solicitors to be present during questioning if required and the Supreme Court indicated that this is a practice that ought to continue. Therefore, it seems that the Irish courts are favourable to the extension of the protection afforded to the accused at the pre-trial stage and although they have been slow to extend a constitutionally protected

right to all aspects of legal advice, it seems it is only a matter of time before this occurs.

The Courts, Fundamental Rights & Rights of the Accused

The Reform of the Exclusionary Rule in DPP v JC: Striking the Correct Balance or a ‘Revolution in Principle’? Fionn Henderson

In what the late Justice Hardiman labelled as a ‘revolution in principle’ in a scathing dissent and a ‘major step in the disengagement’ of the prior rights-orientated jurisprudence of the Court which he ‘deeply deplored’, the Irish Supreme Court on the 15th of April 2015 by a 4-3 majority in

DPP v JC abandoned the strict exclusionary rule established in DPP v

Kenny some 25 years previous.

Differing Rules:

AG v O’Brien established the exclusionary rule with regards evidence in this jurisdiction, holding that ‘evidence obtained in deliberate and conscious breach of the constitutional rights’ should, save in extraordinary circumstances, ‘be absolutely inadmissible’. However, the Court indicated that to satisfy the ‘deliberate and conscious’ test, the breach of an accused’s constitutional rights would need to be intentional. Consequently, as the Gardaí were unaware of the defect in the search warrant that rendered the search unconstitutional, the Court refused to rule the resulting evidence inadmissible. 53

80 Years of Bunreacht na hÉireann In DPP v Kenny the Court faced a choice between maintaining a rule of exclusion of unconstitutionally obtained evidence based on the deterrence principle or adopting what it labelled an “absolute protection principle”. It chose the latter, as under Article 40.3.1 it was obliged to choose whichever principle afforded a greater and more effective defence and vindication of the personal rights of the citizen. Consequently, evidence obtained in ‘deliberate and conscious’ breach of constitutional

rights

would

absolutely

excluded

(save

extraordinary circumstances), and crucially now it was only the actions themselves of the Gardai that needed to be ‘deliberate and conscious’ as opposed to an intention to breach constitutional rights in obtaining said evidence. However, the effect of the decision in DPP v JC is to retreat from this

strict exclusionary rule, which O’Donnell J branded as being the strictest in the common law world as it resulted in the exclusion of all such evidence in practice, regardless of any existence of mala fides. Clarke J laid down the new rule whereby evidence obtained in breach of an accused’s constitutional rights will be admitted where such a breach was inadvertent or derived from subsequent legal developments. However, inadvertence will not encompass recklessness, gross negligence or where senior members of an Garda Síochána exploit less experienced members’ lack of knowledge to gather evidence. Furthermore, if the evidence could not have been obtained constitutionally irrespective of the breach, it will not be admitted.

The Courts, Fundamental Rights & Rights of the Accused Differing Theoretical Rationales: Not only are the two formulations of the exclusionary rule divergent in practice and application, but they also differ in their theoretical grounding. The previous, stricter, conception of the rule per Kenny was based on a principle of â&#x20AC;&#x2DC;absolute protectionâ&#x20AC;&#x2122; or vindication of the rights of the accused. It aimed to restore the party subject to the breach of constitutional rights to the position they would have been in had the violation not occurred and therefore was triggered merely by its occurrence; rendering any intention irrelevant. However, the current conception of the rule under JC is based on the principle of deterrence of unconstitutional police conduct, hence why evidence obtained as a result of an inadvertent breach of constitutional rights will not be excluded, and evidence obtained due to an intentional, reckless or

grossly negligent breach of constitutional rights will. This shifting of the theoretical basis for the new rule flows from the majority view in JC that previous decisions, particularly Kenny, fail to adequately balance the competing constitutional rights at stake; namely the public interest in combatting crime effectively and the individual rights of the accused. Accordingly, the effect of this recalibration is to tip the balance towards the public interest at the expense of the accusedâ&#x20AC;&#x2122;s individual rights.

Prior Judicial Discontent: While the majority decision in JC represented a significant judicial recalibration regarding the admission of unconstitutionally obtained evidence and was subject to one of the strongest recent dissents by 55

80 Years of Bunreacht na hÉireann Justice Hardiman, it was not surprising considering the judicial discontent with the strict exclusionary rule exhibited since the decision in Kenny. In DPP v Cash Charleton J criticised the decision in Kenny as “remorselessly” excluding evidence obtained through illegality occurring by mistake which didn’t “commend itself to the proper ordering of society” – the very purpose of the criminal law. In DPP v Mallon, O’Donnell J pushed back even further, softening the effects of Kenny with regard to defective warrants by holding that while the strict exclusionary rule operated within this jurisdiction, courts “should be slow” to invalidate warrants due to typographical, grammatical or transcription errors that are not intended to and do not mislead any “reasonable reader”.

A Regrettable Departure? As a recent decision of the Supreme Court, the decision in JC is undoubtedly representative of the current state of the law. However, this departure from the strict exclusionary rule in favour of the new formulation is not without its potential defects – Daly raises a series of pertinent issues in this regard. Firstly, she highlights that under the new rule defective warrants may fall to attract more serious consequences than previously, as it is possible to view a failure to properly check the face of the warrant before execution as reckless if not grossly negligent (which will not be excused under JC).

The Courts, Fundamental Rights & Rights of the Accused Daly also questions the legitimacy of the “subsequent legal developments” aspect of the new test, arguing that it not only undermines a finding of unconstitutionality but also draws trial courts into acting upon evidence obtained in breach of the Constitution. Whereas the constitutional breach in obtaining the evidence may have been inadvertent, the trial court later admitting and acting upon said evidence is anything but – arguably bringing the administration of justice into greater disrepute than any harsh application of the prior rule in Kenny. To this it could be added that such an approach is analogous to the prior reasoning of the Court in justifying an inclusionary rule regarding unconstitutionally obtained evidence (i.e. that it should be admitted with the trial judge maintaining a discretion to refuse admission) in AG v McGrath where it stated that the Court does not ‘excuse’ the illegality, ‘it merely ignores it’ – a viewpoint which has long since been abandoned in this jurisdiction. Finally, Daly notes that in the period between Kenny and JC, there have been significant curtailments in the rights of the accused at both trial and pre-trial stages – increasing intrusions on the right to silence, extended detention periods and so on such that the strict exclusionary rule under Kenny may well have been the last bastion of due process in a ‘swell of crime control rights-limiting enactments’. In addition to legislative interference, the erosion of suspects’ rights has even been furthered by the people with the passing of the 16th Amendment, which allows a court to refuse bail if it considers it necessary to prevent the commission of a serious offence; an intrusion on the presumption of innocence. 57

80 Years of Bunreacht na hĂ&#x2030;ireann In light of this, it is arguable that JC is an appropriate decision when assessing the issue of evidence obtained in breach of constitutional rights in isolation, and yet a regrettable departure when viewing the issues in the wider context against a background of successive curtailment of suspectsâ&#x20AC;&#x2122; rights.

The Courts, Fundamental Rights & Rights of the Accused

McGee v Attorney General: A Harbinger of Social Change Sarah Murphy

The case of McGee v Attorney General was a controversial decision that had a tremendous impact on the Irish legal landscape, the consequences of which can still be seen today. The plaintiff in the case, Mary McGee, was a 27-year-old married woman with four children. During her previous pregnancies, she had suffered severe complications as a result of cerebral thrombosis. Due to these life

-threatening complications, Mrs. McGeeâ&#x20AC;&#x2122;s doctor advised her that, if she were to become pregnant again, her life would be in danger. To prevent another pregnancy, her doctor prescribed her the use of a diaphragm and spermicidal jelly. However, such products were not permitted to be sold in Ireland, so Mrs. McGee ordered them from England. On importation, the products were seized as they violated s.17 of the Criminal Law Amendment Act 1935 (No.6). Represented by future President Mary Robinson, Mrs. McGee took a case against the State arguing that the prohibition on the importation of contraceptives contravened Article 40.3.1 of the Constitution which provides that, â&#x20AC;&#x153;the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." 59

80 Years of Bunreacht na hÉireann Mrs. McGee argued that she and her husband enjoyed an unenumerated right to marital privacy and so had the right to use contraceptives within that marriage, without interference from the State. The Supreme Court ruled in the plaintiff’s favour and established that married couples had a right to marital privacy when it came to issues such as contraception. Citing Griswold v Connecticut, a similar case from the US, Henchy J observed that the prohibition brought private sexual relations between a husband and wife within the ambit of the criminal law; a clear violation of their personal rights under Article 40.3.1. In his view, a piece of legislation that criminalised Mrs. McGee’s efforts to affect a responsible decision made by her and her husband, on medical advice could not be said to be consistent with the unenumerated right to marital privacy and the protection of the married family under Article 40.3.1 and Article 41 respectively. While this finding was met with approval from many women’s groups, it alarmed a significant portion of the population. A Letter to the Editor in The Irish Times demonstrates some of the reaction to the decision,

“because of what has happened in other countries… it seems certain that that availability of contraceptives by law will lead to increasing pre-

marital and extra-marital sexuality which in turn will lead to unsuitable and unhappy marriages, to weakening of faith, to deterioration of public opinion, all paving the way to further legislation permitting homosexuality, abortion and divorce”. As unlikely as it may have seemed at the time, this dramatic prediction about “legislation permitting

homosexuality, abortion and divorce” turned out to be largely correct. While it is unlikely that these monumental changes in Irish society can 60

The Courts, Fundamental Rights & Rights of the Accused be traced directly back to the McGee case, as we will see later the case certainly provided a legal context within which these future developments could be discussed. As Neville Cox points out, McGee had wider Constitutional ramifications which can still be seen today. After the case, there was a fear among conservatives in Irish society that, if contraception was legalised here, we would follow a similar path to the United States. Around this same time as the McGee decision, the Supreme Court of the United States had found a right to an abortion within the right to privacy in the seminal case of Roe v Wade. There was a fear that an activist Supreme Court in Ireland could find the same right in the Irish Constitution. This sparked a campaign to recognise the right to life of the unborn at a constitutional level, to ensure that this could never happen. It was this strong reaction

to McGee that created the political context for the eighth amendment to the Constitution to be put to the people and passed in September 1983. Said amendment, Article 40.3.3. of the Irish Constitution, declares that the, â&#x20AC;&#x153;State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate

that right.â&#x20AC;? 35 years later this is still one of the most divisive issues in Irish life and will be the subject of a referendum later this year. Aside from wider political and social ramifications, McGee has also been significant in other legal decisions concerning important social issues, providing an existing legal context within which to discuss them. In a challenge to the criminalisation of homosexual acts, David Norris 61

80 Years of Bunreacht na hÉireann relied on the principles established in McGee to assert a right to privacy, not just in the context of marital relations but in the context of any consensual sexual activity. In Attorney General v X, the case was cited in a discussion of both the prevention and termination of a pregnancy on health grounds. More recently, in an attempt to have a same-sex Canadian marriage recognised in Ireland, McGee was cited in Zappone v

Revenue Commissioners in an argument about constitutional interpretation and whether it was “frozen in time” or could be adapted with changing attitudes. In Fleming v Ireland, the case was referred to in a discussion of unenumerated Constitutional rights and whether the right to die was included amongst them. In Foy v An t-Ard Chláraitheoir, the privacy rights established in McGee were relied upon in the context of changing a birth certificate to reflect the applicant’s preferred gender.

As can be seen above, McGee has had an incredibly significant legacy in furthering social change in Irish society. The case has been skilfully used in various contexts to further social change. In this way, along with giving rise to the passing of the eighth amendment, we can see that nearly 45 years later, the case still has an incredible impact on the Irish legal landscape.

The Courts, Fundamental Rights & Rights of the Accused

The Golden Age of Enumeration - the Court that gave Life to the ‘Living Document’ Niall O’Shaughnessy

…it is no accident that the Irish Constitution is written in the present tense. It is to be treated as a living document which, without doing extreme violence to its actual provisions, can in many instances be so interpreted as to reflect the changes time inevitably brings. - Chief Justice Ronan Keane, Judges as Lawmakers: the Irish

Experience The phrase ‘living document’ has become synonymous with the 1937 Constitution. Due to the frequency with which the phrase is employed, its implications and origins are often forgotten about. The purpose of this piece is to examine the caselaw that generated this description, as well as examining the chances of a potential resurgence of judicial activism for the Irish Supreme Court. It was under the tenure of Cearbhall Ó Dálaigh, Chief Justice between 1961 and 1973, that the Constitution’s potential was unlocked, and a number of external social and political factors lent themselves hugely to the development seen during this time. Significant as these circumstances may have been, two seemingly errant words - ‘in particular’- in Article 40.3 of the Constitution spawned a new era of 63

80 Years of Bunreacht na hÉireann judicial creativity in the Supreme Court. In Ryan v Attorney General, legislation authorising the addition of fluoride to public water supplies was challenged by Gladys Ryan, as she believed the Act violated her and her children’s right to bodily integrity; a right she claimed was implicit in the wording of Article 40.3. Having examined all the available scientific evidence on fluoridation, Kenny J in the High Court and Ó Dálaigh’s Supreme Court found against Ms Ryan but held rights existed that were unspecified in the text of the Constitution. The judiciary then wasted no time in mobilising the doctrine, implied rights such as to work or earn a livelihood was established, firstly under Kenny J again in

Murtagh Properties v Cleary and, within a year, clarified in obiter dicta by Walsh J in Murphy v Stewart. Another landmark judgment arrived soon after in the form of McGee v Attorney General, which struck down legislation banning the importation of contraceptives and established the unenumerated right to marital privacy. Evidently, it is not the result of the Ryan case that has stood the test of time, but the reasoning behind it. As Hogan points out, had the drafters intended for Article 40.3 to be a general instruction for the legislature, they would not have provided the clear opportunity for judicial intervention found in 40.3.2. The Article points to ‘the State’ to ‘protect’ and ‘vindicate’ its people - not singling out one branch to take on those duties, it is thus within the remit of the judiciary. Determining what rights implicitly exist within the Article, Kenny J referred to the ‘Christian and democratic nature of the State’, a seemingly unsupported explanation that is ‘not at all self-evident’. As the doctrine developed, judges extracted rights from sources such as natural law (The State 64

The Courts, Fundamental Rights & Rights of the Accused (Nicolaou) v. An Bord Uchtála) or human personality (Norris v Attorney General). Walsh J even went so far as to call upon future judges to refer to their own ideas of ‘prudence, justice and charity’. The end of Ó Dáiligh’s tenure did not signal the end of the doctrine, its popularity merely eroded under consistent criticism. For instance, the techniques used to find implied rights provided no objective guide for future determinations, the processes seemed to only reflect the preference of the judges themselves. As well as that, the breath of discretion encouraged in these judgements was not proportional to the ambiguity of the text being dealt with. Furthermore, the unelected nature of the judiciary encouraged criticism of democratic illegitimacy. The culmination of all this pressure led the doctrine to become ‘withered’. The closest the Supreme Court came to rejecting the doctrine

was in Re Article 26 and the Regulation of Information (Services Outside

the State for Termination of Pregnancies) Bill 1995, where the mechanism of sourcing new rights from natural law was held unsuitable for interpretation, despite acknowledging its superior position to positive law. With regards to speculating on the future direction and activity of the

Supreme Court, the remarkable set of factors that culminated during Ó Dálaigh’s time makes predicting a repeat almost impossible. The socioeconomic conditions of the time, along with the political allegiances, ambition and temperament of Ó Dálaigh and Walsh, provided an ideal backdrop for the judicial creativity and activism seen. Furthermore, as Nolan points out, possible inclusions in the unenumerated rights doctrine, such as protection from poverty, have been ruled out as, in this 65

80 Years of Bunreacht na hÉireann instance, the policy and budgetary powers of other state branches would be infringed upon. As well as that, the ratification of the European Convention on Human Rights has provided a new, more extensive source of rights to be relied upon, making future enumeration unnecessary, as seen in Heaney v Ireland. However, in the case of In the Matter of re Article 26 of the Constitution

and the Health (Amendment) (No. 2), the Court gave the unenumerated rights doctrine a lifeline, refusing to rule out the inclusion of further implied personal rights. Just last year, in NHV v Minister for Justice, a statutory provision was struck down for infringing an unenumerated right for only the seventh time in the Constitution’s history. The Supreme Court found the ban on asylum seekers looking for and accessing employment to be inconsistent with the implied right to work

(or earn a livelihood, as it has also been described). NHV marks a departure from the Court’s previous reluctance to engage with the unenumerated rights doctrine since the turn of the century, as well as O’Donnell J’s recalibration of what was a cluttered area of caselaw. NHV perhaps then indicates how Irish courts will tackle unenumerated rights going forward, not by expanding the doctrine to include new implied rights, but by clarifying and solidifying existing caselaw, once again allowing the doctrine to be an attractive legal implement.

The Courts, Fundamental Rights & Rights of the Accused

Is One Presumed Innocent all around the World? Doreen McCarthy

In the Irish State, the presumption of innocence is embedded within our

Constitution. An accused enjoys the presumption of innocence until proven guilty. This is a cornerstone of our criminal law. As article 40.4.1 provides, the constitution aims to ensure that ‘no person shall be deprived of his liberty except in accordance with law’. This ensures the respect of human dignity in the criminal process. Furthermore, it values the importance of one’s liberty. In this article I am going to explore the origins of this principle and how it operates in practice both in the Irish Legal system and in other legal systems around the world. A famous declaration in this area was delivered in 1935. The English courts deemed the presumption as the “golden thread” of English law in

Woolmington v DPP. The landmark case in the House of Lords is where Lord Sankey affirmed the presumption as the ‘golden thread’, or essential element of, the criminal law. The overall issue that the House of Lords was considering was the trial judge's direction to the jury. Here, the trial judge had inferred to the jury that the onus is on the accused to prove that he did not intend to kill his wife. This was rejected on appeal where it was affirmed that the duty lies with the prosecution to prove the defendant's guilt beyond reasonable doubt. The House of

80 Years of Bunreacht na hÉireann Lords took the same approach in Attorney-General’s Reference No.4 of

2002, which related to an anti-terrorism offence. The principle developed in Ireland also. A leading case is O’Leary v AG. In this case Costello J confirmed the presumption of innocence to be constitutional in nature. The plaintiff was convicted of membership of an’ ’unlawful organisation’’ contrary to s.21 of the Offences Against the State Act, 1939 (as amended) and (2) possession of incriminating documents contrary to s.12 of the same Act. However, the argument arises that the plaintiff, like any other citizen had a right to the presumption of innocence at his trial. This legislation, he argued, denied him this right. Costello J in his judgement had to firstly ‘consider whether the statutes operate to infringe the right asserted’. Furthermore, he explained that the Oireachtas may restrict the

enjoyment of the principle under certain justifications. In this case he concluded that s.21 of the Offences Against the State Act 1939 did not infringe the defendant’s rights.

People (AG) v O’Callaghan dealt with this topic again. The issue was primarily related to the right to bail, which is inextricably linked to the presumption of innocence as it involves detention prior to trial, a stage

at which one is still presumed innocent in law. Walsh J describes the pivotal role of the principle not only during a criminal trial but also before it; ‘’The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial’ ’This case subsequently became the leading case on the matter. The objective of bail here was defined as being to ensure the accused’s appearance at trial. In The People v. Crosbie & Others the Court 68

The Courts, Fundamental Rights & Rights of the Accused reiterated that the fundamental test in deciding whether to allow bail or not is the probability of the applicant evading justice. This test is centred around the key principle of the presumption of innocence. It further acts as a safeguard for the principle. The European Union has introduced a Directive in 2015 to protect the presumption of innocence. It was created to reduce problems of clarity within the Union in relation to the principle. A clear universal approach is noticed in this agreement. The burden of proof in ‘establishing the guilt of suspects or accused persons is on the prosecution’. There is a need for this clarification as around nine million people are the subject of criminal proceedings every year in the EU. This was the main reason for the Directive’s implementation. It ensures extra protection for all EU citizens facing criminal charges. The supremacy of EU law is crucial in

enforcing the principle. This all relates back to the foundations of the Constitution. The Irish Constitution, at its heart, aims to ensure that the rights of the accused are upheld, and the right to liberty requires strenuous protection from the State in a criminal prosecution. The provision is a step to ensure this prevails. As Blackstone once said, ‘it is better that ten guilty persons go

free than that one innocent person be convicted’. The presumption in favour of the accused is a recognition not just of the importance of the right to liberty which may be at stake, but also the imbalance of power between the individual and the machinery of the State. In conclusion, the presumption of innocence is a long-recognised principle of law and is seen as an essential element of a fair and just legal 69

80 Years of Bunreacht na hĂ&#x2030;ireann system. This clearly highlights its huge importance in courts everywhere. The idea of oneâ&#x20AC;&#x2122;s dignity, liberty and reputation being on the line deserves a safeguard which this principle aims to provide. Properly applied, it delivers utmost fairness in the criminal law process which outweighs the burden prosecutors face.

The Courts, Fundamental Rights & Rights of the Accused

Article 40.6: Blasphemy Rachael Mullaly

“Silly, a little embarrassing and needs to be changed.” Such are the harsh words used by Minister for Health Simon Harris last May in discussing Ireland’s blasphemy law. Similar comments echoed in the public sphere

following the public outcry after the Englishman Stephen Fry found himself allegedly in breach of provisions contained in not only the Defamation Act 2009 but also the Constitution itself. Article 40. 6 of the Constitution provides that the publication or utterance of blasphemous matter is an offence “punishable in accordance with law”, while the Defamation Act outlines penalties for the offence.

Despite efforts in the past to hold a referendum on such provisions, the question of the legitimacy of blasphemy laws in Ireland continuously finds itself being pushed further and further down the list of politicians’ priorities. While many deem the provisions inappropriate, Ireland has yet to see a politician so steadfast in such an opinion that they are willing to weigh it above other issues in terms of importance.

Nevertheless, with almost nine million views on YouTube, Fry’s latest comments appear to have thrown these provisions back into the limelight. In particular, sustained criticism of the offence of blasphemy have been published via initiatives by the Law Reform Commission (1991), the Constitutional Review Group (1996) and the Constitutional Convention (2014).

80 Years of Bunreacht na hÉireann The common argument laid out by those in favour of keeping the provisions, that freedom to discredit religion leads to social disharmony, becomes difficult to justify when one notes the social disharmony that simply having the provisions in the first place could potentially cause. Designed to “keep the law under review… and conduct research with a view to reforming the law” the Law Reform Commission presents reform proposals to the government in a purely legal sense. Tasked with such an onerous role, for the Commission to take a definitive position on such a contentious issue is noteworthy. The Commission echoes the thoughts of many in its claims that provisions in question have “no place in a society that represents freedom of speech”. Such criticisms are indicative of a general fear amongst the populace that such provisions are a chilling restriction on wider freedom of expression. Despite the increased attention surrounding the Fry proceedings, the blasphemy provisions contained in the Constitution have been subject to a number of contentious cases in the past also. Corway v Independent

Newspapers is one such example, where a cartoon published in the Sunday Independent quickly became the subject of legal proceedings surrounding its commentary on the divorce referendum. What is

noteworthy about this case is that it essentially rendered such constitutional provisions ineffective, as the Court ruled charges could not be brought on the basis of Article 40.6 alone as the Government had failed to legislate in that regard. The most important outcome of the case was that it outlined the “constitutional gap” that existed and stressed the need for such legislation, which later came in the form of the 2009 Defamation Act. 72

The Courts, Fundamental Rights & Rights of the Accused While this Act is welcome insofar as it modernises the law, making it easier to bring cases forward, it is not without constitutional problems. A brief inspection of the Act and one can visibly see that the main defence outlined within the legislation - the idea that the “reasonable person” would find some kind of “genuine literary, artistic, political, scientific, or academic value” in the subject at hand - is entirely unclear but also hopelessly subjective. However, given that there have been no successful proceedings under the Act thus far, it seems only time will tell what exactly constitutes “reasonable” in this regard. This need for clarity however, is crucially important when one considers the fine of €25,000 that anyone convicted under the Act is liable to pay. This then, is the what the current law on blasphemy resembles in Ireland. The Constitution itself forbids the publication of such material

and the Defamation Act outlines what precisely is meant by this. Such laws are “astonishingly widespread” across the world, according to a report by the United States Commission on International Religious Freedom (USCIRF). However, according to Vice-President of the European Parliament Mairead McGuinness, the fact that the law is rarely enforced does not

mean it is not problematic. An issue stressed by McGuinness and others is that while Europeans regularly engage in criticism of the abusive blasphemy laws in regions such as Indonesia and Pakistan, it is incredibly easy for local authorities to dismiss us as hypocrites. The obvious answer to such problems is to hold a referendum and bring the question of blasphemy before the Irish people. We can opt to place 73

80 Years of Bunreacht na hĂ&#x2030;ireann freedom of speech above the freedom to criticise or ridicule religion, or we can continue to cradle the blasphemy provisions in the interests of perceived social harmony which some believe arise from these provisions.

Socioeconomic Rights, Education & the Family

Socioeconomic Rights,

Education & the Family ____________________________________ Asylum Seekers and the Freedom to Work in

Ireland Margaret Gallagher

An End to Absolute Prohibition The landmark decision of the Supreme Court in N.V.H v Minister for

Justice & Equality and ors [2017] to declare unconstitutional the absolute prohibition on asylum seekers entering or seeking employment contained in s9(4) of the Refugee Act 1996 and reproduced in s16(3)(b) of the International Protection Act 2015 marks a long awaited and critical juncture in Irish jurisprudence. Ireland was one of only two EU Member States (including Lithuania) to enforce an absolutist ban on employment during the asylum procedure. The decision of the court to 75

80 Years of Bunreacht na hÉireann recognise a qualified freedom to work under Art 40.3 of the Constitution brings Ireland closer in consonance with its European counterparts and is a welcome step when viewed under the lens of international obligations and guidelines contained in the European Social Charter, EU Charter of Fundamental Rights, UDHR, ICESCR, CERD, and CEDAW to name a but a few. Importantly, this marks the first occasion that an Irish court has relied directly upon a general comment of the UN CESCR. The court noted that the committee’s description of the right to work as ‘essential for realizing other human rights and forms an inseparable part of human dignity’ is ‘broadly consistent with that which was the background to the constitution.’ The adoption of a rights based rhetoric toward an economic, social and cultural right, the oft precariously nonjusticiable cousin of civil and political rights, is refreshing. Coupled with the understanding that the exercise of that freedom as a fundamental part of human personality which can ensure the protection of a person’s other rights makes for a promising ode to the interconnected nature of this ubiquitous bifurcation of rights.

The Need to Ensure an Effective Right to Work While it is laudable that the court’s reasoning is couched firmly under the rubric of human dignity, its subsequent holding is difficult to square. It appears almost irreconcilable to declare the freedom to work as going to the ‘essence of human personality’ with any curtailment of that right. To place restrictions on the freedom to work of asylum seekers to particular sectors, professions may dilute the spirit of the constitutional 76

Socioeconomic Rights, Education & the Family right so that it becomes illusory and non-effective. The court drew on the obligation to hold persons equal before the law ‘as human persons.’ Though differentiation may

legitimately be made under Art 40.1 and

such economic rights are often subject to qualification, when reasoned, as in this judgment, that work is ‘connected to the dignity and freedom of the individual’, it becomes difficult to justify such limitations. It should be noted that the vast majority of EU member states, including Belgium, France and Spain operate no restriction on the sectors which asylum seekers may enter. Further, and perhaps more problematic, is the finding that the prohibition violated neither the ECHRA 2003 nor the EU Charter of Fundamental Rights. The court concurred with the Court of Appeal that the applicant could not rely on the Reception Conditions Directive and its recast Directive (which requires the grant of access to the labour market within nine months after application when a first instance decision has not been issued) as Ireland has not opted into either and therefore the provisions of the Charter have no application. However, this statement avoids the nuance of the matter. Ireland as a member of the Common European Asylum system is obligated to apply EU asylum law and policy as required by Art 78 TFEU, in accordance with its international obligations. With regard to the ECHRA 2003, there is the potential that the measure could have violated Art 3 prohibiting inhuman and degrading treatment and Art 4 of the Charter specifically when such a denial negatively impacts mental and physical health or to adopt the language of the court ‘damage to the individual’s self-worth and sense of themselves.’ Unfortunately, these arguments were not made. What remains clear is that there is a need for an integrated 77

80 Years of Bunreacht na hÉireann approach to the State’s human rights obligations regarding the asylum system.

The New Scheme On 9th February, the Supreme Court officially ruled the prohibition on asylum seekers seeking employment as unconstitutional. Set against the backdrop of delays in decision making, the detail of how this right is to be affected is critical. Ireland has chosen to opt into the EU (recast) Reception Conditions Directive, which provides asylum seekers the right to work under certain conditions. The opt-in process is yet (at the time of writing) to be completed. The interim scheme introduced by the Government disappointingly makes effective access to the labour market

for many asylum seekers illusory. This incredibly restrictive regime which is largely directed towards highly skilled workers requires that applicants find a job that pays a starting salary of €30,000 per annum, with their prospective employer required to evidence that they were unable to find a suitable Irish or EU citizen for the post. Asylum seekers are further not permitted to apply for employment in more than seventy different sectors including childcare, social work, healthcare, hospitality, food and housekeeping. It must be noted therefore that for many female asylum seekers the limited nature of the right may represent double discrimination as these sectors tend to be female dominated. Another barrier to employment is provided at the initial stage of the application, asylum seekers are required to apply for a working permit under the Employment Permits Act 2003 at a cost of between €500 and €1000 for 78

Socioeconomic Rights, Education & the Family the six to twelve-month permit. This amount is completely untenable when asylum seekers currently living in direct provision have a weekly allowance of just €21.60. The Supreme Court in its decision recognised that there can be significant distinctions made between citizens and non -citizens with regard to entry into employment. It is crucial to acknowledge that part of its reasoning drew on the equality guarantee in Art 40.1 of the Constitution which adopts a weak process conception of equality, modelled on the first part of Aristotle’s injunction to treat like cases and groups alike and unalike cases and groups unalike. However, in this case it would appear that a fair balance has not been struck. The interim scheme provides nothing more than an illusory, ineffectual right for many. The letter of the law has changed, yet the spirit of the new scheme seems not too dissimilar. For asylum seekers to have effective access to their constitutionally protected right to work, this interim scheme and the EU regime to follow ought to have regard to the Supreme Court’s evaluation of the right to work as forming an integral part of human dignity and going to the ‘essence of human personality.’

80 Years of Bunreacht na hÉireann

Article 41.2 – A Need for Change? James Lawless

Article 41.2 of the Irish Constitution decrees; ‘the State recognises that

by her life within the home, woman gives to the State a support without which the common good cannot be achieve’. Furthermore, section 2 reads ‘the State shall, therefore, endeavour to ensure that mothers shall

not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’. The Constitution has long been recognised as a living document by the Supreme Court, evolving to a form which best represents Irish society. Since its inception, it has been moulded by

the views and attitudes of the citizens, so with it being non-static in nature, and with several proposed amendments lying in wait, the desire to reword Article 41.2 is not surprising. This desire’s success rests with the people when it will come to a national referendum in October of this year.

The Significance of Article 41.2 Article 41.2 has garnered a great deal of opposition for its wording and what it translates to in today’s world. It has been suggested that this provision only serves to offer women greater protections, yet it also appears to suggest that women, by virtue of their gender, are confined to the homeplace and need not pursue professional careers, as it may 80

Socioeconomic Rights, Education & the Family interfere with their responsibilities. Thus, it is not overly difficult to see where this opposition stems from. This provision, word-for-word, has remained unchanged since the original 1937 Constitution and it seems to imply that women naturally assume the role of carers, so it is their duty to be housebound. Though this view pervaded in Ireland of the 1930s, the social landscape of today has transformed completely.

Steps towards Amendment Efforts to repeal the article can be traced back to as early as 1993, when the Second Commission on the Status of Women called for its deletion in their report to the government. More recently, the issue was scrutinised by the Constitutional Convention in 2013. 88% was of the view that the

article should not remain unaltered. Nearly all were in favour of modifying it to make it more gender neutral and to give greater recognition to carers in the home. Regarding the obligation of economic necessity, the Convention reached the consensus that the State should assist carers (in particular) who work in the home. A working group was established by the Department of Justice to review

the report of the Convention, and in August 2016, senior officials described it as ‘out of date’ and deduced that the only way to repeal or amend it would be through a national referendum. It also added that such a referendum would attract controversy, which may in part be linked to the recognition given by the article to carers. Therefore, any form of alteration to the article could have a significant effect on carers. Though the term ‘carer’ is not explicitly mentioned, the wording of the 81

80 Years of Bunreacht na hÉireann article seems to imply that the role is only occupied by women, as there is no mention of men acting in the same capacity. This notion in itself is intrinsically anachronistic.

Views on the Matter The article has attracted comment from a broad range of individuals and institutions. Before the 2016 General Election, the then Minister for Business and Employment Ged Nash stated that if the Labour Party were to be re-elected, the amendment of this article would very much be part of the party’s programme for social reforms. More recently, Fine Gael TD Josepha Madigan described it as being ‘anachronistic’ and stressed the need for change. As well as this, the National Women’s Council of

Ireland’s Orla O’Connor believes that whilst the article is more symbolic in nature, the Constitution should reflect the needs and values of society. From a national level to an international level, the United Nations has also weighed in on the matter. The Committee on the Elimination of Discrimination against Women highlighted the language in the article as being ‘stereotypical’ and that there is great need for a referendum on it. These views have been cited with approval by Emily Logan, the Chief Commissioner of the Irish Human Rights and Equality Commission, who has also called for change.

Socioeconomic Rights, Education & the Family A need for greater information In July of last year, the Sunday Times conducted a poll which interestingly revealed that only 41% of those surveyed would support the removal of article 41.2.1. It is also rather curious to see more men were in favour of such a removal (42% against 40%). As well as this, 39% of those polled indicated that they would vote for outright repeal. These figures are relatively surprising, particularly when you consider that the issue has been the subject of sustained criticism. The same poll also revealed that 20% of those surveyed were unsure of how they would vote. Therein lies the problem; a lack of knowledge on the subject matter. Therefore, it is important that voters are made more aware of what the article means and what will happen as a result of a potential repeal or amendment. This concern has been flagged by Josepha

Madigan. Perhaps the reason for this ignorance is, that whilst anachronistic, the article lacks any substance. Despite what it stands for, in truth, the provision only holds symbolic status, as highlighted by Orla Oâ&#x20AC;&#x2122;Connor. Women are not restricted by this article today as they may have been in the past and have complete freedom to make their own decisions in life.

It has no real impact, so it is vital to consider the effect of changing it and whether it is even necessary to do so.

Looking Forward The wording of article 41.2 of the Constitution may be considered

incompatible with the social norms and culture of today. With the cost of 83

80 Years of Bunreacht na hÉireann holding a referendum on the issue ranging from €12-14 million, it is imperative that the public are made aware of what the provision means, and equally, what impact removing it would have. On face value, article 41.2 paints an outdated, stereotypical portrait of Irish society, and even though it’s impact is non-existent, it still holds a place in our national Constitution. Whether a change, if any, will be achieved through repeal or modification remains unclear, yet one thing which is certain, is that gender discrimination under any guise cannot exist in our primary source of law.

Socioeconomic Rights, Education & the Family

The Origins of Divorce Law in Ireland Rowan Kelleher

Divorce in Ireland has made great strides in little over a century. From its ban in the 1937 Constitution to the passing of the 15th amendment in 1995, it has become a familiar and socially acceptable means of resolving marital breakdown. Although our modern understanding of divorce is limited to this brief synopsis, its origins are a compelling case study of a conservative society’s social progression through legislative reform. This article therefore seeks to discuss the status of divorce before 1937, how its unavailability influenced its 1937 ban and lastly how legislation led to the passing of the 1995 referendum.

Divorce prior to 1937 Contemporary Irish divorce can trace its roots back to the passing of the ‘Divorce and Matrimonial Causes Act of 1857’ in England, which transferred divorce proceedings from the ecclesiastical courts to the civil courts. Prior to this legislation divorce could only be granted by annulment or a private bill in parliament which was an expensive and embarrassing ordeal requiring the public debate the couple’s marriage. As Ireland was tied legislatively to England the Act was expected to be implemented but never was. Irish citizens still had to petition parliament or use the ecclesiastical courts which many did not, records 85

80 Years of Bunreacht na hÉireann showing only 39 divorces between 1857 and 1910 at costs exceeding £300 in 1853. Even when proceedings were transferred to the civil courts in 1869 their powers were limited, unable to decide property or custody disputes and restricted to administering legal separation (not remarriage) on grounds of adultery, ‘unnatural practices’ and “certain forms of cruelty (such as nagging, spitting, refusing intercourse…).” Divorce remained unpopular not only because of its unavailability but also due to the changing attitudes toward marriage. After the ‘The Great Famine’ of the 1840s many families began to safeguard against future catastrophes by consolidating their wealth, with marriage providing the best means of transferring assets between families to ensure economic security. This financial prudence came with a social cost resulting in a decline in the marriage rate with less couples marrying and later in life

from waiting on inheritances.

The 1937 Ban A newfound appreciation of marriage grew in Irish society from this decline and it became something to be valued and protected. Opposition

to divorce became the norm and was reflected in the first Irish Free State government of 1922 where standing orders prohibited the introduction of private bills of divorce to parliament. A TD named Eamonn Duggan also voiced society’s hostility to divorce by amending the Constitution to include the provision, “subject to the public order and morality” in the personal rights section. A pre-emptive effort to

Socioeconomic Rights, Education & the Family preclude any legislation on divorce or what was called “Mormonism” at the time. In the following years public opposition to divorce grew exponentially with the Catholic Church’s increased presence in the new state. Taoiseach Éamon De Valera seized upon the public feeling to bring about his vision of Ireland based on Christian morals and values, codified in a written constitution. He consulted heavily with Church leader Archbishop John Charles McQuaid to incorporate Vatican teaching into his new constitution - ‘Bunreacht na hÉireann.’ Though disagreeing over provisions to include such as a ban on contraceptives, both men agreed that a prohibition on divorce was essential. Article 41.3.2 was their creation to ensure that “no law shall be enacted providing for the grant of a dissolution of marriage.”

The 1995 Referendum The 1937 ban on divorce remained in Ireland until the divisive 1995 referendum on the 15th amendment which was passed by a slim majority of 0.5%. What was seen as a sudden watershed moment in Irish

history was actually the result of a decade’s worth of legislative activism by the government. The goal being to introduce divorce piecemeal to the Irish public in order to change attitudes and resolve the social injustice of its ban. The source of the 1995 referendum success was its 1986 predecessor which ended in a crushing defeat for the government and their

supporters. Rushed and lacking political consensus, the campaign was a 87

80 Years of Bunreacht na hÉireann foregone conclusion. The pro-divorce side drastically underestimated the power of the anti-divorce lobby specifically the Catholic Church who pressed on the legal uncertainties of divorce such as alimony and inheritance, something the executive failed to provide for in legislation if the amendment was to be passed. Constitutional compatibility was also raised by claiming that legalising divorce was an attack on the family, something which was meant to be protected under Article 41. In the end, the result was 63% in favour of upholding the ban. In the intervening years the government learned from its mistakes and prepared for another referendum. To lay the groundwork and resolve pressing issues in family law the executive introduced a wealth of new legislation. This was targeted at addressing the issues raised by the antidivorce lobby during the referendum and dealt mainly with children and separated wives. Among the most significant legislation was the ‘Status of Children Act 1987’ which removed the discrimination between children born inside a marriage and outside (‘illegitimate’ children), treating them as equals for maintenance and inheritance rights. Dependent women also benefited from the new legislation especially from the ‘Judicial Separation and Family Law Reform Act 1989’ which extended the grounds for legal separation, granted the courts powers to distribute property among partners and make maintenance orders for dependent spouses. It also recognised a person’s work in the home and included it as a factor in its orders. The passing of this legislation was vital to revising the stigma around divorce and was paramount to the 88

Socioeconomic Rights, Education & the Family success of the 1995 referendum featuring heavily in the ‘Right to Remarry’ campaign. The origins of divorce law in Ireland are a fascinating microcosm of the interconnection of law and society. From its beginnings in the late 19th century to its ban in the 1937 Constitution, and eventual legalisation in 1995, it has shown how the law can reflect society’s prejudices but also its desire for positive change.

80 Years of Bunreacht na hĂ&#x2030;ireann

The Family based on Marriage - does this Reflect our 21st Century Society? Laura Kirwan

The Constitution of Ireland enshrines marriage, putting the institution on a pedestal which renders it almost sacrosanct. Art 41.3.1 views marriage as an essential foundation of the family unit. Therefore, certain rights and protections are awarded to families based on marriage which are not afforded to cohabiting or single-family units. Are these protections a product of their time or are they still essential in modern day Ireland? What is considered a modern family in Irish society is

changing. Therefore, is it imperative that the protections of the Constitution be amended to reflect this? This article will reflect on the societal backdrop in which the Constitution was drafted in order to determine whether the safeguards reserved for the nuclear family based on marriage remain relevant and appropriate. Cases which demonstrate the status endowed upon marriage will be explored to demonstrate its strength in the courts. A brief examination of the lead up to the 34th amendment will also be discussed to highlight the difficulties involved in altering the laws pertaining to marriage. The aim of this article is to critique the Constitutional protection afforded to marriage in relation to the rights conferred on the family. It is imperative to look to the historic context in which the 1937 Constitution was enacted. Ireland relied heavily on its Catholic identity. 90

Socioeconomic Rights, Education & the Family Therefore, the idea of constitutionally enshrining the family based on marriage was a reasonable and appropriate concept. Illegitimate children were viewed as socially undesirable, the reverberations of which have cast a long shadow on this country and its institutions. To criticise these protections without fully considering the time in which they were written would be ill-advised. In instances of custody disputes of children, the prevailing test utilised is the “best interests” test i.e. what should be done is in the best interests of the child. However, the protection given to marriage under the Constitution means that Constitutional marriage can even prevail past this test despite the reality at hand. In the case of Re J.H.; K.C v An Bord

Uchtála, the mother of the child in question had married the father having already given the child up for adoption. The natural parents

looked to rescind the adoption now that they were married. The High Court ruled that it was in the child’s best interests to remain in the custody of its adoptive parents. However, this decision was not upheld by the Supreme Court. It ruled that there was a constitutional presumption that the child’s best interests were in fact with its natural parents. Even though the High Court reinstated the natural parent’s custody of their child, it was done with great reluctance. The child had spent 3 years with its adoptive family and had no contact with its natural parents in that time. The weight given to the constitutional protection of marriage in this case appears to disregard the best interests of the child. The Supreme Court did take into account that if there were strong countervailing reasons, this Constitutional presumption could be rebutted. However, the author submits that the High Court’s original 91

80 Years of Bunreacht na hÉireann analysis to protect the child’s psychiatric wellbeing should be the deciding factor. To uproot the child and place them in an environment with practical strangers could have been dangerous for their mental health and development. This Constitutional protection of marriage was highlighted during the lead up to the Marriage Referendum in 2015. There was debate that a referendum was not required to change the law in relation to same sex marriage as the wording of the Constitution didn’t strictly prevent same sex marriage. However, if legislation were introduced to allow for same sex marriage, its validity would have been constitutionally fragile. Therefore, in order to avoid enacting constitutionally repugnant legislation, a constitutional amendment was required which permitted marriage to be contracted without distinction as to sex. The Marriage Referendum was a step towards opening up the institution of marriage. It remains a privileged institution but is now inclusive of a new type of family. It has demonstrated that marriage protected under the Constitution can be altered to align with society. The author submits that there is still room for growth and change. Single-unit families and non-marital families continue to be excluded from the Constitution. Such

a concept has long been discussed in public life. The 1996 Constitution Review Group recommended that Article 41 be amended to guarantee to all individuals the right to respect for their family life, whatever form it takes. An All Party Oireachtas Committee on the Constitution in 2006 recommended that a new section be inserted into Article 41 which reads “All children, irrespective of birth, gender, race or religion, are equal before the law. In all cases where the welfare of the child so requires, 92

Socioeconomic Rights, Education & the Family regard shall be had to the best interests of that child.â&#x20AC;?

These

recommendations attempt to give children the same Constitutional rights regardless of their parentsâ&#x20AC;&#x2122; marital status. While Constitutional recognition of marriage remains commonplace throughout the developed world, the superior position of families founded on legal marriage may not accurately reflect the social landscape. However, the fact that family rights are linked to marriage no longer reflects our modern environment. If the constitution is considered a living document, the protections for family units outside of marriage ought to be given constitutional parity with the family based on marriage. Although legislation has been introduced to address the lacunae, ultimately there exists a hierarchy of rights that assign preference to families based on marriage. It is integral then that the

inclusion of rights of all families be reflected in our constitution in order to reflect the state of society in 2018.

80 Years of Bunreacht na hÉireann

The Right to a Home under the Irish Constitution Danielle Curtis

Ireland is in the midst of a homelessness crisis. In late December 2017, Focus Ireland reported 8,587 people homeless. This figure signifies an increase by over 17% in the number reported homeless in 2016. More than one in three people in emergency accommodation are children. It is noted by Focus Ireland that this number does not signify the everincreasing number of people suffering from ‘hidden homelessness’. To set this into context, this paper will deal with the question of whether a right to a home exists in the Irish Constitution.

Legal basis for the Right to a Home Many countries in the EU protect the right to housing in their Constitution including Belgium, France, the Netherlands and Spain. In

March 2014, the Convention on the Constitution overwhelmingly voted to include enforceable economic, social and cultural rights in the Constitution including a right to housing. Despite this, there remains no express right to housing in Irish law. Therefore, a person must rely on ‘unenumerated rights’ to provide a basis for securing adequate housing. These rights include, but are not limited to:

Socioeconomic Rights, Education & the Family 1. The right to privacy, 2. The right to equal treatment, 3. The right to dignity and autonomy; 4. The right to life and bodily integrity. When it comes to families and the interests of the child, Article 42A of

the Constitution obliges the State to protect the interests of children whose parents, in exceptional cases, have failed in their parental duties. This includes the childâ&#x20AC;&#x2122;s right under the Child Care Act 1991 to adequate shelter, creating an opportunity to judicially challenge the Stateâ&#x20AC;&#x2122;s retreat from this positive obligation. However, there is yet to be a substantial challenge in the courts under Article 42A. It is clear that there is no right

per se to housing in Irish law, though, there are certain specific substantive and procedural rights afforded under statute.

Statutory Provisions for Social Housing The Housing Acts 1966-2014 and related Regulations contain certain rights and duties in relation to social housing; these include but are not

limited to: 1. The right to apply for social housing assistance, 2. The right to be assessed for social housing assistance once you have applied, and

80 Years of Bunreacht na hĂ&#x2030;ireann 3. The duty of a local authority to make an assessment of housing need. Section 2 of the Housing Act 1988 sets out the definition of â&#x20AC;&#x2DC;homelessnessâ&#x20AC;&#x2122;. Under this section, a person will be regarded as homeless if there is no accommodation available which, in the opinion of the local authority, the person could reasonably occupy, and in the opinion of the local authority, the person is unable to provide accommodation from their own resources; or if the person lives in a hospital, county home, night shelter or similar institution because he or she has no other accommodation. The Act obliges the local authority to take the needs of people who are homeless into account. However, the local authority is not obliged under the Act to provide housing on an individual basis or to provide emergency accommodation when a person

is homeless. Therefore, the powers conferred in the Housing Acts may be used at the discretion of the Local Authority, a discretion which the courts remain reluctant to interfere with, as evidenced by the decision in

Mulhare.

Mulhare v Cork County Council [2017] IEHC 288 Mulhare involved a challenge of the refusal of Cork County Council to provide for alternative accommodation which was more appropriate and accessible to the applicant who suffered from profound physical and mental disabilities. The applicants argued that given the damp conditions of the current house and its distance from the hospital which the applicant attended for chronic illness, the current accommodation 96

Socioeconomic Rights, Education & the Family was deeply unsuitable for their needs. The court accepted that the Council had offered to carry out refurbishment works to adapt the property to the applicant’s needs in line with an occupational therapist’s report. In light of this, the Court refused to grant an order of mandamus to provide further housing suitable for their needs within the bounds of Cork City. In doing this, the Court emphasised the expertise of the Council and the lack of judicial knowledge over issues concerning the allocation of housing. Baker J noted that while the allocation of housing must be carried out “in accordance with a scheme of priorities and based on a reasonable and reasoned consideration of application”, it was ultimately a matter within the “competence and expertise of the housing authority and it is not the function of the court to direct how that policy is to be applied in any particular case”.

International Federation for Human Rights (FIDH) v Ireland, Complaint No. 110/2014 In 2017, the European Committee on Economic Social and Cultural Rights (ESCR) found Ireland in violation of human rights standards in relation to its failure to take sufficient and timely measures to ensure the right to housing is of an adequate standard for families who are placed in Local Authority Housing. The CESCR raised a number of serious concerns over the habitability of the houses, citing the presence of sewage, contaminated water, dampness and persistent mould. Of this, the CESCR noted the untimely manner in which the Local Authority dealt with these issues with a high number of residents in estate areas in 97

80 Years of Bunreacht na hĂ&#x2030;ireann Dublin still complaining of sewage invasions a number of years after the problem was first identified. Article 16 of the European Social Charter, under which the violation was identified, recognises the right of the family as a fundamental unit of society to â&#x20AC;&#x153;appropriate social, legal and economic protection to ensure its full development.â&#x20AC;? This ruling follows on from another CESCR advisory opinion in 2016 in relation to the provision of Traveller accommodation, and the need for the state to provide adequate and safe accommodation which also respects cultural identity.

Conclusion The courts remain reluctant to interfere with decisions of the Council,

signalling that they view the Council as the competent authority, possessing significant expertise in housing allocation and to which courts should extend considerable deference. The serious inadequacy of our law has been made deafeningly clear in the context of the current homelessness crisis. The right to adequate shelter in Irish law does not give the right to a key to a home for all, but does require the State, in its decisions and policies, to reasonably protect the right and allow for strong court intervention. Despite the evolution and expansion of the Constitution since its enactment, Ireland lags behind other European nations in guaranteeing the protection of economic and social rights for its citizens.

Socioeconomic Rights, Education & the Family

Changes in Family Law 2018 – The Divorce Waiting Time Bill Jane Leydon

The dissolution of marriage was not provided for in the 1937 Constitution. The prohibition was reflective of the religious values of the Constitution’s Roman Catholic drafters. However, it is an irrefutable fact that marriages break down and this was a fact that was generally condemned and frowned upon by society prior to the 15th Amendment in 1995. The prospect of provision being made for divorce in the Constitution created a platform for debate and discussion with campaigns for and against. Divorce was opposed for reasons based on its being ‘morally objectionable’ and ‘inhumane’. Twenty-three years later however, we are considering a proposal to improve the decree of divorce, making it easier to obtain, the sole purpose being to make divorce more humane. It will allow people whose marriage has broken down to access the legislative certainty and finality of a divorce within a

reasonable time. While the passing of the divorce referendum marked a significant change in the attitude of society towards divorce in 1995, the Divorce Waiting Time Bill 2018 reinforces that change, and encapsulates how society has since embraced divorce, accepting the irrefutable fact that marriages break down. Family breakdown in Ireland became more prolific in the lead up to the 1986 referendum for Divorce. Irish people were recognising the reality 99

80 Years of Bunreacht na hĂ&#x2030;ireann of the hardship, cruelty and the emotional and financial strain that marital breakdown caused families. While the pro-divorce campaign at that time crafted a decent argument for a yes vote, where it failed in its campaign was that they did not provide the electorate with any certainty of what was going to happen were the referendum to pass. However, this was made clear for people in the second referendum in 1995. While the divorce referendum in 1995 managed to achieve strong support, it still faced considerable opposition. The opposition manifested itself into an unyielding and hardened attitude that divorce was wrong and should not belong in our Constitution. This attitude was a by-product of the resistance to cultural change in Ireland at the time. It appeared that it could not waiver to recognise the increasing and inescapable reality that marriages fail and when they do there is a necessity for a facilitating, legal solution. Consequently, the referendum passed marginally, signifying the strength of opposition to the legalisation of divorce. To assuage the fears of voters, the amendment was constructed in a highly restrictive manner. The restrictive conditions detailed that couples would have to prove that there was no hope of reconciliation, that they were living apart for four of the five years of separation and that adequate provision is being made for spouses and children. The restrictive nature of the amendment resulted in what would prove to be a cumbersome condition. The spouses would be required to have lived apart from one another for a minimum period of four years during the five years preceding the divorce. An analysis of the purpose for the waiting time restriction being inserted into the legislation points to a strategic move on the pro side. Labour Senator Ivana Bacik has 100

Socioeconomic Rights, Education & the Family described the intention of the tedious waiting time as being “a way of ensuring the Divorce referendum (in 1995) passed.” It is crucial that the purpose of the waiting period is assessed, when it has placed an unnecessary hurdle before the right into the Constitution. Divorce can be complicated by nature, and complexity can vary on a case by case basis. An acrimonious divorce can be onerous on all parties involved. It can be a financially and emotionally painful process for families, imposing severe consequences on the health of both partners and the children’s wellbeing. Crucially, a burdensome time restriction inflicted on couples which can prolong this tumultuous period should not remain in existence twenty-three years later if its purpose was merely to promote the passing of a referendum. Minister for Culture, Heritage and the Gaeltacht, Josepha Madigan

recognised this and thus introduced a Bill in September last year to reduce the waiting time for divorce from four years to two years of the preceding three. This Bill has been passed by the Oireachtas and will be voted on in a referendum later this year. The Bill has received uncontested support and its passing is very much viewed as a strong possibility. Madigan believes the waiting period to be excessive and that it has led to insufferable consequences for the parties involved. In her twenty years’ experience as a family law solicitor she understands that it is harsh and restrictive, placing severe financial and emotional strain on separating couples involved in divorce. She knows it to be a restriction which locks couples in a limbo, forcing many thousands of couples into two separate sets of proceedings. She speaks of how couples in this limbo were described as going “from soul mates to cell mates because 101

80 Years of Bunreacht na hĂ&#x2030;ireann they were effectively stuck togetherâ&#x20AC;?. Her ultimate goal in introducing the Bill is to make the divorce system itself more humane by allowing separating couples to embark on the next chapter of their lives without the unnecessary stress and financial burden imposed by a four-year waiting period. This Bill which is planned to be brought to referendum in November this year marks a salient moment in family law in our state. It represents the change that has occurred in family law and crucially it indicates that further change will be embraced in the future.

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Voting, Democracy & the Referendum

Voting, Democracy & the Referendum _____________________________________ Popular Sovereignty in the Irish Context: The Deployment of the Referendum to Resolve Disputes, Uphold Decisions, and Legitimise State Acts in the Eyes of Citizens. RĂłnan Riordan

From its inception in 1922 under the Free State Constitution, Ireland has wrestled with the issue of legitimacy. Its status as a dominion of the Commonwealth during the Free State years, the Anglo-Irish Treaty, and partition were all challenges to its status as a legitimate entity. Irelandâ&#x20AC;&#x2122;s first Chief Justice, Hugh Kennedy, argued in his dissent in Ryan v Lennon that referenda and popular sovereignty provide a means of resolving

disputes between the State and citizen. By allowing the People themselves 103

80 Years of Bunreacht na hÉireann to make decisions of national policy and formulate its fundamental law, the State is subservient to the will of the People. Democratising the legislative process in this manner legitimates State acts as the will of the People. Through referendums, contestations of the State’s acts and authority are rebuked. This can be observed through two illustrative lenses; (1). The European Union and Sovereignty, and (2). Societal Issues and Shifting Social Landscapes.

The European Union and Sovereignty European Integration continually provokes questions as to the legitimacy of the State. In Crotty v An Taoiseach, Mr Crotty sought to prevent Ireland’s ratification of the Single European Act (SEA), arguing it was inconsistent with our Constitution. The Supreme Court agreed; the Constitution confers the power to conduct international relations to the Government, but this does not mean it has the right to surrender such power, as it would if the SEA was ratified in full. Furthermore, the relinquishment of this power requires a referendum, as, according to Article 6, it is the peoples right "to decide all questions of national policy".

Doherty v Referendum Commission, set to the backdrop of the post-2008 financial crash, when questioning of Government and State authority were rife, examined the referendum on the Fiscal Treaty.

Specifically it

addressed the issue as to whether statements of the Referendum Commission, suggesting Ireland had foregone its opportunity to veto European Stability Mechanism, were correct. Justice Hogan, referring to Article 6, reflected that the Constitution envisaged a society in which

citizens would be required to make decisions about their State. Hogan J, 104

Voting, Democracy & the Referendum mirroring Kennedy CJ’s reasoning in Ryan v Lennon, argued that our democracy is founded on the People’s authority, expressed through the referenda as outlined under Articles 46 and 47.

Societal Issues and Shifting Social Landscapes The Eighth Amendment is today, as it was at its inception, one of the most

divisive topics in Irish society. The Fourteenth Amendment permitted the provision

information

abortion

services

outside

Ireland.

Consequently, the Regulation of Information (Services outside the State for

Termination of Pregnancies) Bill 1995 was passed and was subject to constitutional review. Counsel arguing against the bill contended it conflicted with both the natural law and the Constitution via the Eighth Amendment, and that the logical conclusion was a finding of unconstitutionality. The Supreme Court rejected this, noting that Article 5 proclaims Ireland a sovereign, independent and democratic State. Further, Article 6 determines that the People have final say on all matters of national policy. In enacting the amendment the People were aware of the conflict with the Eighth Amendment but decided that the freedom to obtain information should not be limited. Article 6 was again explored in the case of Jordan v Minister for Children

and Youth Affairs which concerned the Thirty-First Amendment to the Constitution (The Children’s Referendum) and a proposed re-run of the Referendum on the grounds that an unconstitutional government campaign, in favour of the amendment, “materially affected” the outcome. O’Donnell J noted that while the Constitution creates a “functionally similar” system to

105

80 Years of Bunreacht na hĂ&#x2030;ireann other democracies, Article 6 is a unique declaration that our polity is not derived from royal concession or grant by a legislature. Rather;

"The sole temporal source of power acknowledged by the Constitution is the people themselves. In that sense, the separation of powers in the Irish Constitution while tripartite, has a fourth important, indeed overarching, component." It was held that while there was a breach of the rules by the Government, an annulment would require the outcome to have been materially affected. Further, to set aside a decision of the People requires exceptional circumstances, neither of which were present. In Hanafin v Minister for the Environment, the referendum on the Fifteenth Amendment, legalising divorce, was challenged on the grounds that a Government-funded (ie. From taxation) campaign urging a yes vote, was an unacceptable interference with the referendum. The Supreme Court held that there had been such interference, but as Oâ&#x20AC;&#x2122;Flaherty J reasoned, the people, in exercising their law-making powers, are allowed a presumption of constitutionality. He also noted that;

"no case had been made that any citizen had voted other than in accordance with his or her own free will . . . and that accordingly the presumption of constitutionality in favour of the result had not been displaced."

106

Voting, Democracy & the Referendum Analysis Ireland has faced various challenges to its legitimacy. The European Union is perceived by some as an illegitimate encroachment on sovereignty and undemocratic, having implications for the State as a legitimate democratic entity. The referendum allows these contentions to be rebuked as a decision of the People, not the executive.

Hanafin, Re: Information Bill, and Jordan illustrate the judiciary’s view of the sovereignty of the People in Ireland’s constitutional framework, the referendum as virtually inviolable, and the existence of a presumption that the People know their minds and intentions. Collectively the Court's reasoning illustrates the utilisation and deployment of the referendum to; uphold the State’s acts as legitimate

where the issue has been mandated by the People to the State via a referendum, and as a means of recognising and cement societal change within the State through the law on a macro level.

Conclusions In Ryan, Kennedy CJ demonstrated a willingness to embrace a new constitutional democracy, an intricate appreciation of popular sovereignty and the role of referenda in legitimising the State in the eyes of her citizens. This reasoning has been mirrored by the Courts since the enactment of Bunreacht na hÉireann eighty years ago, and it is contended that such an interpretation is the correct approach in the Irish constitutional context. 107

80 Years of Bunreacht na hÉireann O’Donnell J correctly observed that there exists three pillars to the State in Ireland; The Executive, Legislative and Judicial. But the overarching component which supports and legitimises this tripartite structure is the Irish People themselves, who are the foundation upon which the pillars rest. Through the plebiscite which enacted the Constitution and the referenda which followed, the People renew and reaffirm the Constitution as their will, to which the State is their servant. Thereby, they create a mechanism in which popular sovereignty is utilised as a means of affirming and legitimating the State’s actions, or inactions, as the will of the People.

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The Rise of the Independence Referendum and the Future of the Island of Ireland in the EU Christopher Woods

The European Union has seen increasing instability over the past few years. This was stimulated by the 2008 financial crisis which led to increased financial control by the Troika, comprised of The European Commission (EC), the European Central Bank (ECB) and the International Monetary Fund (IMF). Following this, the Lisbon Treaty which was ratified in 2009 forced members to move towards further integration. The Treaty saw numerous delays, legal challenges and rejections from Ireland, UK,

Germany, Czech Republic and Poland. Recently, conflict in North Africa & Syria has prompted an influx of refugees to the Union. Several member states have disputed granting refugee status, and this was one of the key arguments used by pro Brexit side during that referendum campaign. This is coupled with European immigration over which domestic governments have limited ability to exclude migrants. While European federalists in France and Germany have sought further integration, this has been hampered by the rise of independence movements within the Union. The greatest blow to the Union, in recent times, was the vote for the secession of the United Kingdom following the continued opposition to EU policy and a referendum of its citizens. In light of the UK’s reluctance to accept a European superpower and David Cameron’s veto of the Lisbon treaty in 2011, it was perhaps unsurprising that such a referendum was called. The

EU’s commitment to rights was a key motivator in the UK’s departure and is 109

80 Years of Bunreacht na hÉireann likely to lead to further tension from divergent member states. Brexiteers saw The Charter of Fundamental Rights as an unnecessary statement of existing rights that would undermine predictability of British Law. However, Conservative MP Suella Fernandes asserts that the charter would have given UK citizens additional rights in eugenics, personal data and collective bargaining. The spectre of increasing legal costs, and perhaps the fear of European federalism has been seen to push member states to the

edge. The future of the European Union has been thrown into further doubt following the rise of independence movements across Europe beginning with Scotland’s independence referendum in 2014. The then president of the European Commission, Jose Manuel Barroso, stated that any independent country would have to apply to join the EU following a successful

referendum.

The

principal

problem

arising

from

this

requirement, is the likelihood of other member states using their veto to block a membership application. Spain has been a prime example of this. The recent independence movement in Catalonia was met with considerable resistance from the Spanish government. The region, being the wealthiest in Spain, is positioned as a key commercial and financial centre, and its secession would have a catastrophic impact on the country’s GDP, as much of its wealth would form the GDP of a new Catalan nation. It is for this reason that Spain is likely to refuse any newly-independent country’s application for EU membership. Scotland on the other hand will not face the same level of resistance as most of the UK’s wealth is focused in the South of England. As it will already be a non-union member, the Spanish government will find it harder to justify a veto in this case. Similar independence 110

Voting, Democracy & the Referendum movements have been seen with Flanders and Wallonia in Belgium, Brittany in France, Bavaria in Germany, and Sicily in Italy, to name but a few. In this context, it is important to consider the position of Northern Ireland following the United Kingdom’s departure from the EU. Article 3.1 of the Irish Constitution recognises that ‘a united Ireland shall be brought about

only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island’. The Good Friday Agreement 1998 also contained provision for a united Ireland, subject to agreement from the majority of the population of Northern Ireland. At the time, the majority of citizens in Northern Ireland wished to remain within the UK. Following the vote on Brexit, Sinn Féin called for a referendum on a United Ireland. Much of the political wind in the sails of Sinn Féín have since been lost by virtue of the importance of the DUP in the Westminster government’s power arrangement. The establishment of an external EU border on the island of Ireland is seen as a particularly difficult issue. The three key areas that need to be considered are trade, movement of people and regulation.

Ireland’s

position as a non-Schengen country makes these issues significantly easier. For example, any suggestion that Northern Ireland could be used as a back door in and out of the EU are diminished. Free movement can continue between the two states while Irish citizens will continue to meet passport checks travelling to continental Europe. While the current agreement reached on the position of Northern Ireland post-Brexit is that of full regulatory alignment, it is important to consider further possible developments. 111

80 Years of Bunreacht na hÉireann Former Taoiseach Enda Kenny stated that the provisions which allowed East Germany and West Germany to unite and join the EU offered a precedent for a United Ireland referendum. Recent polls have indicated a desire to hold such a referendum. The “GDR clause” discussed at the first Brexit Summit states that upon unification, the entire island of Ireland would become part of the European Union. Shortly after the 2014 Scottish Independence referendum, an opinion poll conducted by LucidTalk

revealed that 47% of Nothern Ireland citizens desired a border poll, while 37% rejected the idea. However, the poll also indicated that a referendum is currently unlikely to be successful, with less than 6% of citizens in favour of unity at the time and 24% favouring unity in 20 years’ time. In contrast, a poll conducted just last year showed that 47.9% of people would favour joining the Republic of Ireland in the event of a hard Brexit while 45.5% would vote to remain as part of the UK. Support may, however, increase or decrease depending upon the success of planned arrangements when the United Kingdom officially leaves the Union. The ability of the British and Irish governments to implement the planned ‘regulatory alignment’ will likely have the greatest impact on opinion. The situation is considerably clearer for a scenario such as Scotland’s. If the United Kingdom agrees to a further Independence referendum, and Scottish citizens vote to depart from the United Kingdom, then there will be a hard border between the two states. Scotland will not be able to take advantage of the same arrangements as Northern Ireland provided by the GDR clause and will have to apply for EU membership. However, the veto power of other member states could be an obstacle to Scotland and other newly created states as current members try to moderate fragmentation.

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Voting, Democracy & the Referendum The future of independence movements and referenda in the EU is uncertain. If the Union moves further towards a federation, much of the autonomy of members will be lost. This will either create a position where regions will opt to completely cut ties, or it will allow for regions to embrace their own culture and policies on an equal footing in the union. It is undoubted that the organisation of the EU can be detrimental to minority languages, cultures and values. The Unions focus on a broad political

consensus is utopian but when it comes to contentious issues for individual member states fractures may begin to appear in public opinion. Continuous pressure for Ireland to change its corporate tax regime threatens our economic strategy, while the introduction of the Permanent Structured Cooperation (PESCO) for security and defence challenges our neutrality stance. These expansive policies may put pressure on the Irish government to question our membership as our state identity is challenged. Other member states will face similar political battles. However, it is the collaboration of the Union that may protect Irish interests in the face of Brexit. When European Council President Donald Tusk stated, that â&#x20AC;&#x2DC;if the UKâ&#x20AC;&#x2122;s Brexit offer was unacceptable to Ireland, it would be unacceptable to Europeâ&#x20AC;&#x2122;, it became clear that the bargaining power of the European Union and the its vision of unity, equality and its mission to advance the rights of

all citizens are superior to any national interests.

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The Second Referendum: Context and Implications Patrick Cormac English

The recent decision by British voters to leave the European Union (‘Brexit’) has brought to the fore a number of important issues about the nature, and purpose, of the referendum process. One of these, which has been gaining increased attention in recent times, is the possibility of having a ‘revised’ vote, to decide an issue again in light of those developments which have occurred since voters’ initial decision. This has generated a significant degree of controversy, not least for the implications raised as to the ‘finality’

of referenda. This inquiry will seek to outline the context within which a referendum vote operates, both in the aforementioned British setting, and with regard to the Irish mode of voting. It will then identify how ‘double-voting’, as both the potential second-Brexit vote and previous votes in this jurisdiction have been described, can occur in both settings. Lastly, it will examine the

implications of this phenomenon for the concept of referenda, and the ostensible ‘will of the people’.

Referenda in Ireland and the United Kingdom The basic concept of a referendum does not differ significantly between the jurisdictions of the Republic of Ireland and the UK. The importance and 114

Voting, Democracy & the Referendum status afforded to the respective referenda do differ greatly however, as a result of the legal context in which they occur. In Ireland, there are two grounds on which a referendum may be held. The first, which has never been exercised, is a reference of a bill to the people of Ireland pursuant to Article 27 of Bunreacht na hÉireann. The more wellknown mechanism concerns amendments to the Constitution itself in Article 46. Perhaps most notably, this is the means by which both the terms of the treaty of Nice, and later Lisbon treaty, were inserted into the constitution, in the 26th and 28th amendments respectively. It should be noted too that Article 6 of the constitution, though not detailing a specific mechanism, does identify the people as sovereign, a not-insignificant consideration in this context. These amendments are introduced as a Bill in the Oireachtas, whereafter,

once the bill has been passed by both Dáil and Seanad, it is put forward to a public vote. The operation of this mechanism requires a simple majority vote in favour of the Bill, upon which the constitution shall be amended. This is, in a sense, a ‘binding’ procedure, insofar as the decision is undertaken at the referenda level, and not by subsequent processes. This may be contrasted then with the mode of referendum which operates in the United Kingdom. The United Kingdom, a state without a single ‘constitution’ in the sense of a discrete written document, also does not endorse an equivalent concept of ‘mass sovereignty’. It operates instead on the principle of Parliamentary Sovereignty, or an ‘elective dictatorship’, as coined by former Lord Chancellor Hailsham. Referenda thus operate in a distinct manner from their Irish counterparts. Firstly, and as previously evidenced, they do not 115

80 Years of Bunreacht na hÉireann operate to institute constitutional amendments. Secondly, a referendum is created at the behest of parliament itself and does not derive authority from a more fundamental legal authority (such as Bunreacht na hÉireann). The implication then is thus: where a referendum is created in the UK, through legislation that does otherwise not provide for a binding outcome, that referendum is effectively advisory. There are no means, other than the legislation itself, by which the referendum can acquire any legal force. As a result, while both systems employ referenda in a broadly similar manner, as a means of elucidating the ‘will of the people’, the legal implications are distinct.

Returning to the people – ‘double referenda’

Having briefly considered how referenda come to be, and operate, within the jurisdictions, it is important to return to the issue at the heart of recent controversies. A ‘double referenda’ is, in effect, a referendum that refers a question to the people that they have ostensibly considered before. This is possible under both systems. The aforementioned Nice referendum (26th amendment) came in the advent of the so called ‘Nice I’ amendment (see the failed 24th amendment to the Irish Constitution). This newer amendment introduced some changes, such as a mechanism precluding participation in a mutual European defence pact, but was largely identical to the original Bill. More recently, the Lisbon I and II votes proved virtually identical in terms of express legal implications, but received different results from the electorate.

116

Voting, Democracy & the Referendum In the British context, and notably in light of a potential second Brexit vote, the necessity of any such double-referendum acquires a more political, rather than legal, character. Given the necessarily advisory role of the first referendum (as the legislation creating it did not mandate a binding result), the British parliament could theoretically proceed in any fashion it chooses, rather than returning the question to the electorate. To do so, however, risks both political repercussions and the undermining of the public’s

understanding of democratic participation. As a result, a ‘doublereferendum’ in this context, although superficially similar to its Irish counterpart, is once more legally distinct.

Implications and conclusion A tension does inevitably arise then, between the supposedly decisive nature of referendum and a system which permits a question to return to the people. Furthermore, given the cost and binding effect of referenda in the Irish context, this has had the practical effect of minimising the impact of a negative vote, and granting decisive character to those affirming a Bill. This does, in some respects, reflect the actual mutability of referenda which, rather than serving to crystallise public opinion across a meaningful

duration, may be rendered cursory, and instantly antiquated, measures of the public will by divisive political issues. However, the ‘null’ value imputed to an initial decision, in the context of that typical 2-vote scenario in the context of a schismatic issue, does validly raise the spectre of political opportunism. The British model perhaps offers more flexibility in this regard, affording as

it does a less severe status to the result. However, as has been clear from 117

80 Years of Bunreacht na hĂ&#x2030;ireann the discussion surrounding the vote and potential successors, the rhetorical and symbolic weight of a referendum has been far from lessened by this. Rather, it has become a primarily political, and less legal, issue. The Irish analogue, given the authority conferred upon referenda by the Constitution, raises more fundamental questions of purpose. In conclusion, the concept of a double referendum is inherently problematic for any conception of referendum that desires a â&#x20AC;&#x2DC;finalâ&#x20AC;&#x2122; assessment of an issue. This is an issue not liable to be resolved in the short term, but which will in the interim require future and sustained consideration.

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