TABLE OF CONTENTS Letter from the Editor by Matthew O’Shea and Síofra Carlin [Page 4] Foreword by Dr David Fennelly [Page 6] Strengthening Traveller Rights through Civil Legal Aid Reform by Hugh Gallagher [Page 10] A Lost Cause? Asserting Public Housing Rights under the European Convention on Human Rights Act 2003 by Sophie Treacy [Page 13] An Eternity in Tuam: The Injustice of the Mother and Baby Homes by Hannah Hendry [Page 15] The Long Road to Justice: Driving Licences for Asylum Seekers in Ireland by Matthew O’Shea & Liam Ó Lionáin [Page 18] Victims of the past, present and Future? Environmental Injustice and Indigenous Populations in the United States and Australia by Samantha Tancredi & Katharina Neumann [Page 22] The Green Wall: Access to Environmental Justice in Ireland by Eoin Jackson [Page 26] The Eagle Interviews Emma Boylan, Maples Group, by Emma Bowie [Page 30] Áisiúlacht an Aonteangachais sa Dlí agus sa Stát le Ellen ní Aoláin [Page 36] Rochtain ar Cheartas: Access to Justice for Gaeilgeoirí by Muireann McHugh [Page 38] The Eagle Interviews Professor Gerry Whyte by Dara Neylon-Marqués [Page 32] When Justice isn’t Justice: Questioning the Appropriateness of Linear Justice in Instances of Rape and Sexual Violence by Kate Flood [Page 48] Access to Justice: Adolescence, Revenge Porn and a Failure to Regulate Underage Sexting by Abigayle Pigott-Mason [Page 50] It’s Britney *****! The Pop Princess, The Global Icon…The Prisoner who had no Access to Justice for 13 Years! by Luke Gibbons Jr. [Page 54] Ireland’s Inadequate Access to Justice: The Discrepancy between Common and Civil Law Systems by Grace Given [Page 57] Polar Opposite Opinions: The Polish Challenge to the EU’s Legal Order by Ted Halligan [Page 59]
The Eagle staff strives to practice ethical journalism and to promote integrity in its work. The editors and staff reserve the right to publish only those articles which they consider accurate and not injurious. All articles must meet these criteria in their inception and execution. The opinion articles do not necesssarily represent the views of the entire staff, faculty, students or administration of Trinity College Dublin.
Editor in Chief Matthew O’Shea
Deputy Editor Public Relations Officer Katharina Neumann Zoe Timmons
Copy Editor Ellen Hyland
Editorial Board
Aisling Corcoran, Antóin Fletcher, Catherine Forristal, Chloé Asconi-Feldman, Doireann Minford, Emma Bowie, Jacob Hudson, Julia Bochenek, Liam Ó Lionáin, Mark McGrane, Mira Bedi Muireann McHugh, Ted Halligan, Thomas Heron
The Eagle wants to be inclusive of the entire Trinity College Dublin community, and we welcome submissions from students, faculty and alums. If you would like to contribute, please contact us at our email. We do not guarantee that every article will be published. Every article submitted is subject to be edited for content and for size.
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All of the opinions expressed are those of the author and not necessarily of The Eagle. Design and Layout by Matthew O’Shea Cover Image by Matthew O’Shea
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Letter
Letter from the Editor A chairde, I am so excited to collaborate with Trinity FLAC for our second Issue of the year. It feels as though we have just settled into the first semester, and it has already come to a close. In this light, I feel it is important to reflect on some broader issues. For this Issue, we have chosen to focus on Access to Justice, as in today’s fast paced society, it is important that we do not lose sight of the struggles undertaken by our fellow humans around the world. The past few years have brought into focus the importance of access to justice. From political movements to the climate crisis, and so much more in between, it is clear that we still have a long way to go in ensuring a just society for all. This Issue, we are delighted to publish pieces highlighting a number of fundamental areas of access to justice, including pieces with an Irish as well as an international focus, covering environmental law, matters of human rights, and more. In addition, this Issue features the Irish language with pieces considering language rights in Ireland. This is a first for The Eagle, and I certainly hope that it is not a last. As Editor in Chief, I am so proud to facilitate the inclusion of our beautiful language in the Gazette. As always, I want to recognise the extraordinary work being done consistently by our wonderful team. Kat, Ellen, Zoe, and the rest of the editorial board have all made my job incredibly easy through their consistent hard work and eager enthusiasm. I am so proud to be a part of this team, from whom I learn more every day. I would like to express my sincere gratitude to our sponsors for their generous support of The Eagle. Our name sponsor, The Maples Group, has continued its generous support and guidance, and has made compiling this issue a joy. For this issue, we would also like to thank Allen & Overy LLP, Cleary Gottlieb, and Trinity Publications for their help in bringing it to the physical form. It has been 2 years since The Eagle was last in print, and I am delighted to facilitate its return to our hands. I would also like to express my sincere thanks to Síofra Carlin and the fantastic team at Trinity FLAC for their help in putting this issue together. Their insights have been invaluable. It is no surprise why their society is so regularly recognised as one of the best our University has to offer. I can’t wait for what else is yet to come for The Eagle this year. We have already published a great deal of pieces highlighting so many important issues. Recently, we were invited to the inaugural Irish Student Law Journal Conference, where we got to meet with other student-run legal publications in Ireland, and share insights about legal writing with each other. We are constantly improving, and look forward to the coming semester, and the remaining issues of Volume 8. To our readers, I sincerely hope you enjoy reading this Issue as much as I did. Le gach dea-ghuí, Matthew O’Shea Editor in Chief The Eagle: Trinity College Law Gazette
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It has become increasingly clear that access to justice remains a complex challenge in Ireland. The State’s austerely limited position with regards to breaking down the barriers to justice is prevalent through the resoundingly feeble scheme of civil legal aid. Access to justice is a fundamental human right and thus, the funding of our justice system at all levels is essential. In a conference about access to justice, the Chief Justice asserted that Ireland is at or near the bottom of the table for spending on justice, when compared with other countries with similar legal systems. Therefore, the work of the Free Legal Advice Centres (FLAC) is crucial. FLAC was set up in 1969 by David Byrne, Denis McCullough, Vivian Lavan and Ian Candy after they attended a conference on legal aid in Trinity College Dublin. Their aims were to encourage the State to establish a comprehensive civil legal aid scheme; to provide legal advice to those who could not afford the relevant legal fees; and to advance education among law students by encouraging them to engage with legal support for marginalised and disadvantaged communities. FLAC’s overall aim is to promote equal access to justice for everyone as an independent voluntary organisation. Not only have they greatly impacted the course of the provisions of civil legal aid but FLAC has also made a significant contribution to the legal education of law students through the FLAC branches in law schools. Trinity FLAC was first established in 1986/87 and was officially recognised as a society in Trinity College Dublin in 1990/91. Since its establishment, it has provided free legal advice to students through weekly legal advice clinics but has also encouraged students to engage with social justice issues. The society has constantly excelled itself when pushing for social change through weekly social justice events, pro-bono legal research projects, moot court competitions, and fundraising initiatives. Trinity FLAC address a range of social reform issues which vary from maternity rights and tenants rights to immigration law and disability rights. They have liaised and collaborated with organisations such as the National Disability Authority, Dublin Rape Crisis Centre, Threshold, Anti-Slavery International and more. Therefore, Trinity FLAC enables students to address different areas of law that are in need of reform which consequently expands and progresses legal education, awareness and information. Principally, Trinity FLAC works to break down the barriers to access to justice. Currently, there are 66 FLAC legal advice centres in Ireland with almost 600 voluntary lawyers. FLAC continues to campaign for greater access to justice for all as equal access reflects a nation that is diverse, accessible and inclusive. Trinity FLAC are proud to be part of this issue of The Eagle as it not only encapsulates the issues we work to combat everyday but it further our aims of promoting these issues among law students. The barriers to access to justice remain as obstacles to those advancing public interest and achieving social justice and therefore, Trinity FLAC would like to thank all contributors to this Issue in advocating for reform through their legal research. Kind regards, Síofra Carlin Chairperson Trinity FLAC
Photo courtesy of Matthew O’Shea, SS Law and Business
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Foreword
Volume 8 Issue 2 Foreword By Dr David Fennelly, Chair, FLAC As Chair of FLAC, I am delighted to write the foreword to this issue of The Eagle which, in collaboration with Trinity FLAC, focuses on Access to Justice. Since it was founded in 1969, FLAC has been campaigning to promote access to justice in Ireland. The early campaigns in the 1970s, combined with the landmark Airey case before the European Court of Human Rights, led to the introduction of a civil legal aid scheme. This developed over time into the civil legal aid system we have today. While the Legal Aid Board does a huge amount of good work within this system, there are unfortunately major gaps in coverage and resources. If the Strasbourg Court demanded that the right of access to the courts be practical and effective, not just theoretical and illusory, we remain a long way from the full realisation of that right in many areas. Against this backdrop, the commitment by the Minister for Justice to a review of the legal aid system – something FLAC has campaigned for over many years – is a welcome development. For FLAC, it is important that this review, like the original Pringle Report, is a meaningful review, providing a blueprint for a fair, modern and accessible legal aid system. Nothing less is required. Effective legal aid is vital to ensuring access to justice. However, other measures are also necessary, including the modernisation and simplification of the court process. The recent Review of the Administration of Civil Justice, chaired by former President of the High Court, Mr Justice Peter Kelly, makes important recommendations in this regard. While there is much to be welcomed in that Review, FLAC has serious concerns about the recommendations in relation to judicial review. We know from bitter experience in Ireland that efforts to restrict judicial review in areas such as immigration and planning have tended only to increase the time and costs associated with litigation challenging decisions of public bodies. This is in itself a reason for caution in bringing in similar or more stringent restrictions across the board. But much more fundamentally there is a real risk that any significant curtailment of judicial review would undermine what is an essential safeguard for the rule of law in our democracy. It would also raise issues of inconsistency with our European and international obligations. We are very fortunate in Ireland to have a robust and independent justice system, with and independent judiciary and legal profession. Recent events elsewhere in Europe and beyond remind us that these systems – in which judicial review of public decisions plays a key role – must not be taken for granted.
While the Ireland of 2021 is a very different place to the Ireland of 1969, FLAC remains committed to mobilising for access to justice in Ireland. In doing so, we take the view that access to justice is not only important in its own right but that it also has a special importance as a gateway for the protection of fundamental rights and equality. Students have always played an important role in FLAC from its foundation onwards. My own involvement with FLAC started when I was a first year law student in Trinity. As well as making some great friends and
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getting great experience through volunteering, being involved with Trinity FLAC gave me a very different perspective on the law and the legal system to that I found in the academic curriculum. Since that time, I have remained involved over the years in various shapes and forms. As an organisation founded by students, FLAC very much values engagement by students in its work and on issues of access to justice, equality and human rights more generally. You will be the future leaders, within the legal profession and beyond, and your commitment to these issues is more important than ever. This special issue of The Eagle on Access to Justice, in collaboration with Trinity FLAC, is a great example of this commitment and I commend all those who have contributed to its publication.
Photo courtesy of Matthew O’Shea, SS Law and Business
Photo courtesy of Matthew O’Shea, SS Law and Business
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Strengthening Traveller Rights through Civil Legal Aid Reform By Hugh Gallagher, JS Law and Political Science Early this year, the Department of Justice committed to a review of the civil legal aid system in Ireland, under its current strategic objective to “improve access to justice and modernise the courts system.” FLAC (Free Legal Advice Centres) called upon the Minister for Justice to deliver a comprehensive review of this system, a central aspect of this rooted in their experience working with “vulnerable and marginalised communities [who] shared and discussed their experience of unmet legal need and difficulties with the civil legal aid system.” Christopher McCann, head of FLAC’s Traveller Legal Service, has highlighted the disproportionate impact the “ongoing absence of civil legal aid for families facing eviction” has on Travellers. As referenced in FLAC’s evidence to the Joint Oireachtas Committee on Key Issues Affecting the Traveller Community, the “Civil Legal Aid Act 1995 contains practically insurmountable structural barriers to Travellers receiving sufficient and timely legal aid in cases relevant to housing and evictions.” The ramifications of this are broad, beyond the immediate injustice done to any individual Traveller, the inadequacies in our current system of civil legal aid allow for overly broad eviction powers to be deployed against Travellers as a collective group, thereby creating what Darren O’Donovan, discussing the protection of Traveller cultural identity in the housing sphere, identified as “a climate of constructive assimilation impinging upon cultural rights.” This article will therefore highlight that a strengthened civil legal aid system is both essential for access to justice for Irish Travellers, and more broadly to disrupt the cycles of discrimination and assimilation they experience. Eviction Power and Travellers As identified by Christopher McCann in his review of the Traveller Legal Service, “[a] local authority wishing to evict a Traveller living on the roadside or an unofficial site has at its disposal no fewer than five separate legislative mechanisms to do so.” These mechanisms are incredibly broad, carrying with them “the risk of prosecution, of a caravan being towed and/or impounded, and all but one may be invoked on short or no notice, without prior or subsequent recourse to a court or other independent authority.” A particularly draconian element of this legislative framework is Section 24 of the Housing Act 2002, under which the “the mere presence of a caravan, on local authority land without explicit permission, constitutes an offence.” The Gardaí are empowered to direct an individual committing this offence to leave the land and remove any object belonging to them or under their control. An individual failing to comply with this direction is guilty of an offence and their property may be confiscated. In the case of Travellers, this object is generally their caravan, which can be regarded as fundamental to their dignity and identity as Travellers. This framework of eviction powers has been intensely criticised by international human rights bodies, with the European Committee of Social Rights finding a number of violations of Article 16 of the Revised European Social Charter regarding the employment of certain statutory provisions against Travellers. In describing the similar system of eviction powers in the United Kingdom, Justice Pettiti of the European Court of Human Rights identified the vicious cycle “whereby [unreasonable combinations] of eviction laws and housing legislation prevented Traveller families from living in certain areas” leading to the “deliberate superimposition and accumulation of administrative rules” making it “totally impossible” to pursue a Traveller way of life. It should be further considered that the national and international legal protections for Travellers against the arbitrary and extensive use of eviction powers have incredibly limited efficacy. Gerry Whyte, in his work ‘Social Inclusion and the Legal System,’ has noted that there are incredibly limited protections available for Travellers facing eviction in Ireland. For example, McDonald v Feely originally required that housing
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authorities “offer reasonable alternative accommodation to Travellers before taking steps to evict them from unauthorised sites.” However, this principle has been subject to extensive legislative inroading and, in the case of Section 24 of the 2002 Act, complete circumvention. Darren O’Donovan similarly discussed the potential for the European Convention on Human Rights, specifically the obligation to facilitate a Traveller way of life located under Article 8, to act as a more robust condition on the use of eviction powers. Regrettably this has not manifested in practice, with the recent decision of Clare County Council v McDonagh illustrating somewhat cursory judicial engagement with this protection. Therein the court weighed heavily the bare offer of alternative accommodation within their proportionality analysis, rather than engagement with the adequacy and appropriateness thereof. Eviction Proceedings and Civil Legal Aid Section 28(9)(a)(ii) of the Civil Legal Aid Act 1995 provides that legal aid shall not be granted in “disputes concerning rights and interests over land.” Resultantly, there is a presumptive prohibition against granting civil legal aid for cases concerning housing or evictions. This disproportionately negatively impacts Travellers affected by the afore-discussed eviction mechanisms. This was explicitly referenced by FLAC in its evidence to the Joint Oireachtas Committee on Key Issues Affecting the Traveller Community. They stated that “[T]he State’s scheme of civil legal aid does not explicitly extend to the provision of advice and/or representation in cases concerning housing and evictions [n]or could the scheme respond in a sufficiently timely manner to evictions, which in some circumstances see Travellers provided with no notice or a period of 24 hours in which to vacate a site on pain of potential prosecution and/or having their caravan impounded.” This has been further substantiated by the UN Committee on the Elimination of Racial Discrimination (UNCERD), who detailed their “concern about the lack of legal aid provided for appeals concerning social welfare, housing and eviction, which has a significant adverse impact on Travellers and other ethnic minority groups to claim their rights.” Without adequate legal advice or representation, Travellers are regularly confronted with “complex legal processes against well-funded and represented opponents” which “are [generally] concluded without [the] vulnerable party being effectively heard and having their rights asserted,” as Christopher McMahon has observed. An apparent result from this dynamic is that state authorities may be taking advantage of Travellers’ vulnerability, arising from inadequate access to justice, to make extensive use of its ample eviction powers. In one example detailed by Christopher McCann, a Traveller mother of four was facing proceedings from a semistate body which sought to have her “summarily removed from the site by court order, due to her failure to file court pleadings within the time allowed by the Rules of the Superior Court.” However, with the intervention of FLAC and provision of representation the case was ultimately settled before trial. This illustrates that beyond the defence of Travellers within the courts, the provision of civil legal aid could operate strategically; levelling the playing field and motivating the party seeking the eviction of Travellers to compromise or halt the brute eviction measures which often infringe on Travellers’ rights.
The role that adequate legal representation and support can play in eviction proceedings against Travellers is evident, and consequently the injustice wrought by its continued exclusion under civil legal aid is apparent. Reform and Rhetoric Originally, Ireland’s policy position regarding Travellers actively pursued their assimilation into the population, their structured elimination as a distinct people which Robbie McVeigh, researcher and activist, considered consistent with genocide. This has since shifted towards the formal embracing of Travellers’ cultural
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rights and minority status, evidenced recently in their symbolic recognition as an ethnic minority by Enda Kenny who promised that the state “[recognises] the inequalities and discrimination that the Traveller community faces.” However, the new formal objectives of state policy have not altered its consequences and assimilation remains its current primary outcome. Úna Crowley, within her extensive research on the objects of state policy concerning Travellers, has described the evolution as the transition from forced Traveller settlement towards rewarding Travellers for conformity with sedentary norms. Therefore, there is flagrant hypocrisy on the part of the Irish state for spouting rhetoric recognising the plight of Irish Travellers while entrenching the structures which directly harm them. An immediate step that ought to close this deficit between political rhetoric and meaningful action is through reforming civil legal aid to address the legal needs of Travellers. This article has highlighted the interplay between the extensive eviction powers regularly deployed against Travellers and the current inadequacies in our legal aid scheme in providing effective support for those seeking to challenge them. The consequences of this perpetuate the vulnerability of Travellers in a manner directly conducive to their assimilation. If the state is truly committed to furthering the interests of Travellers, then prioritising their access to justice is necessary. Civil legal aid has the potential to strengthen the rights of Travellers, but this can only be achieved if the upcoming review effectively engages with their lived realities and advocacy of organisations such as FLAC.
Photo courtesy of Matthew O’Shea, SS Law and Business
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A Lost Cause? Asserting Public Housing Rights Under the European Convention on Human Rights Act 2003 By Sophie Treacy, SS Law In the case of O’Reilly v Limerick Corporation (1989), Costello J famously delivered a catastrophic blow to the prospect of socio-economic rights protection under the Irish Constitution. He limited the role of the Irish courts to corrective justice, as opposed to distributive justice, thereby cutting off countless jurisprudential avenues through which future litigants could assert positive socio-economic entitlements under the Constitution. It is no surprise, therefore, that when the European Convention on Human Rights Act 2003 was incorporated into domestic law, litigants attempted to use it as an alternative route to contend for socio-economic rights protection in accordance with the rights enshrined under the European Convention. Indeed, the 2003 Act has on several occasions been relied upon by members of the Travelling community in seeking to compel the State to provide them with adequate public housing. By and large, however, such litigation has been characterised by its disappointingly low success rate. Almost every case to date that has been taken by members of the Travelling community to contend for an adequate level of public housing on foot of the European Convention has failed.
Time and time again, we see the Irish courts refuse to entertain a holistic, dignity-centered approach to interpreting the scope of Convention rights, favouring a circumscribed, strict approach of legislative deference instead. The staunch reluctance of the Irish courts to veer into the realm of distributive justice has resulted in some very harsh rulings for members of the Travelling community. In Doherty v. South Dublin Co. Co., for instance, an elderly couple, who were living in a caravan with no running water or heating and were suffering from a number of ailments, contended that this was contrary to the Housing Acts (Ireland) 1966–2004 pursuant to Article 3 of the ECHR, which protects the right to be free from torture and inhuman or degrading treatment. The High Court emphasised that the provision of public housing and welfare is fundamentally a political issue and refused to intervene unless the applicants could demonstrate “a complete inability to exercise their human rights.” In this instance, the fact that the Council were offering apartment-style accommodation, which was manifestly incompatible with the nomadic cultural norms of Travellers, and intended to provide another caravan after 18 months, was enough to satisfy the Court that the applicants’ rights pursuant to the 2003 Act were not infringed. Subsequent attempts by the Travelling community to compel the State to provide adequate public housing were met with similar defeat. From an international perspective, the Irish courts seem to have adopted a comparatively strict interpretative approach to how the ECHR might give rise to positive rights in the public housing context. In McDonagh v Kilkenny County Council, for instance, the Irish High Court ruled that the Council had not infringed the applicants’ right to respect for their private life and family home under Article 8 by compelling them to leave
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occupied land because they had been inhabiting the land illegally. By contrast, in the decision of Winterstein v France, which involved a similar factual scenario, the ECHR adopted a more sympathetic position and ruled that evicting a Traveller family from the land that they had occupied for over thirty years was a disproportionate interference with their rights. This comparison casts a revealing light on how the Irish courts have actively chosen to narrowly construe the scope of Convention rights when members of the Travelling community attempt to rely on them in order to secure public housing. The case of O’Donnell v. South Dublin Co. seemed to provide a glimmer of hope for the Travelling community in the context of establishing public housing rights under the 2003 Act. Herein, the Court finally ruled that because the applicant suffered from severe disabilities and had been living in appalling conditions, their rights under Article 8 of the ECHR were sufficiently infringed to justify entitlement to damages from the State. Unfortunately however, it appears that subsequent developments in Irish jurisprudence on the ECHR row back on even this small step forward for public housing rights pursuant to the 2003 Act. As Fennelly J commented in McD v L, the Irish courts are entitled to challenge “over-adventurous” interpretations of the Convention rights. There has also been a general trend emanating from the European Court of Human Rights itself that takes the view that public housing is essentially a political matter for the legislature to deal with. Overall, the 2003 Act has had a very underwhelming effect on Irish human rights jurisprudence. The Court’s reluctance to engage in distributive justice in the Irish constitutional context has unfortunately spilled over into how it approaches European human rights issues. As the case law in this area illustrates, there has been extremely limited success for members of the Travelling community when it comes to asserting public housing rights under the 2003 Act. What is perhaps most disappointing of all is that the scope of the Convention in Ireland has been interpreted so narrowly that it is difficult to imagine any protection it affords that couldn’t be found to exist anyway through a purposive reading of the personal rights under the Irish constitution. The Convention is therefore not the alternative route to socio-economic rights protection that, in theory, it had the potential to be. Due to the overriding reluctance of the Irish courts to engage in issues of distributive justice, it seems that for the moment, contending for public housing rights under the 2003 Act is little more than a lost cause.
Photo courtesy of Matthew O’Shea, SS Law and Business
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An Eternity in Tuam: The Injustice of the Mother and Baby Homes By Hannah Hendry, JF Law This story begins in Paris, France. In 1861, four sisters journeyed across the Channel to reach their destination: Dublin. Mother Fabian, Mother Hedwige, Sister Mary Luke, and Mary Gonzaga had been invited there by a certain Catherine O’Farrell. Together, they saw the first foundation of the Bon Secours Sisters outside of France. Their mission of ‘Good Help’ and ‘Healing’ spread throughout the land whereupon, in 1885, it reached Tuam in Galway. In this town, from 1925 until 1961, the Bon Secours sisters operated the St Mary’s Mother and Baby Home. Nobody could have imagined the tragedies and cruelty this establishment would later embody. What’s in a name Owing to their French origin, ‘bon secours’ translates in English to “Good Help.” As a reflection of their name, their motto is ironically “Good Help to Those in Need.” Ireland, during this time, was subject to profound influence by the Roman Catholic Church. A child being born out of wedlock was seen as a shameful and sinful act. A pregnant, unmarried woman was, at this time, a scandal. As a result of the support of the Church, these women and children were placed into the care of nuns in institutions such as the Bon Secours Mother and Baby Home. The church dictated the lives and decisions of many Irish families. Furthermore, many families were impoverished and lacked adequate education and support networks. In these merciless institutions, women and their children were treated to inhumane and barbaric conditions. Tuam is derived from the Latin term tumulus, meaning burial mound. Retrospectively, this is an appropriate name for what, in time, was unearthed within this unsuspecting town. Tuam reached global news outlets in 2017, upon the revelation that “significant human remains” had been discovered in the grounds of the former home. These nameless bones were judged not for their potential but simply because they were born outside marriage. Catherine Corless, an Irish historian, identified that 796 infants had been buried in a septic tank in the Mother and Baby home in Tuam. The children were considered to have died of tuberculosis, convulsions, measles, whooping cough, influenza, bronchitis, and meningitis, among other illnesses. Corless was raised in this town, and holds memories of passing this home as a child. The unmarried women and their children within this place were scorned. They were seen as sinners and illegitimate spawn. These children were segregated from their respective communities and adopted the name ‘Home babies.’ Many of these mothers and their babies will remain without a name for another 30 years. Under this veil of mystery, no name will be left upon this world. Without a name, they have no identity. It is as if they never existed. Phantoms of the Tuam. This makes it easier for any wrongdoing to be ‘buried under the tank.’ This is one reason why the legislation that our President signed into law last year was so controversial. Ghosts shrouded in mystery to cast a mist of protection upon a corrupt regime. Bill Signed into Law In late 2020, President Michael D. Higgins signed the Commission of Investigation (Mother and Baby Homes and certain related Matters) Bill into law. This Bill conceals the records of the Commission from the public for 30 years. These records are deposited with the Minister for Children, or with the Child and Family Agency. Furthermore, it provides for the transfer of specified databases being examined by the commission to Tusla.
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Former residents of these institutions will not be able to access their personal information. So far the President has never utilised the power conferred onto him by Article 26 of the Constitution, allowing him to refer, upon the advice of the Council of State, certain bills to the Supreme Court to confirm their constitutionality. Thus, it is no surprise that President Higgins also declined to use the power of Article 26 on this legislation. The President justified his reasoning of not using this power by stating that it would afford an opportunity to the public to challenge the Act in the courts. If a Bill is passed by the Supreme Court after consultation, it is then immune from further Constitutional challenges. This decision from the President could be seen as an attempt to negate responsibility and defer it to the public. President Higgins is empowered on behalf of the public to question these concerning matters where it would be difficult for an individual or community to amass support. Court cases are costly, stressful, and time consuming. It is submitted that the President neglected his role. Both the elected representatives in the Houses of Oireachtas, and the President disregarded the morality of their decisions. Trauma The aftermath of the trauma will remain in the minds of many of the survivors. Not only will they never learn the names of their mothers and fathers, but the cruelties that many had to endure will have long lasting effects on their lives. Peter Mulryan, a survivor of such an institution, details his experiences of being raised in the home in Tuam. His life was subject to abuse, a lack of education, and segregation. At Mass, he was not allowed to be a server owing to the fact that his mother had not been married upon his birth. His mother, Delia, was treated as a “slave, washing floors, washing other babies and feeding them.” Her lack of options meant that even after serving her time within the Home, she had no other place to go and eventually ended up in the Magdalene laundries. Magdalene Laundries There is a correlation between these Homes and another type of now defunct institution that operated in Ireland: the Magdalene Laundries. The Magdalene Laundries started as Protestant-run organisations in the UK as far back as the 18th century, although the remit at the time was less punitive than it would be later on in Ireland. Their purpose was to reform prostitutes, cure them of venereal diseases, teach them a trade, and propel them into decent society. That was the original model, as founded in the UK. In Ireland, religious orders such as the Good Shepherd Sisters, decided to adopt that model and bring it to Ireland around the end of the 19th century, and began to open these institutions for “fallen women.” One could become a fallen woman by having a child out of wedlock, and thus at ‘moral risk,’ or by being raped. It was a punitive environment, much like the Mother and Baby Homes. It offered no solace to innocents and victims, but rather treated them as the offenders.
Children from the Mother and Baby Homes would be sold to American families, adopted, or trafficked. Women would often be inducted into these laundries. They would follow a life of servitude. A cruel and slave-like existence, in which freedom was not a consideration. Additionally, it would be of importance to ascertain the resemblance between the Mother and Baby Homes, the Magdalene Laundries, and the facilities in place for asylum seekers in current times. There are compari-
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sons to be made between the unmarried women of the Laundries, who were abandoned by society, and refugees’ isolation from society. If left unaddressed, history could repeat itself. Access to justice denied Many of these crimes are destined to be unsolved, with the perpetrators remaining anonymous, their deeds concealed, and without punishment. This year, eight UN bodies wrote a letter to the Irish Government on the subject of the newly instated Mother and Baby Homes legislation. In this letter they expressed that they were “concerned that this proposed new legislation would, if adopted, negatively impact upon the rights to truth and justice of affected individuals, whose relatives may be buried in these sites.” The legislation fails to vindicate the survivor’s right to access personal data and records. Their access to justice is denied. Finally, the unearthing of the atrocities that occurred within Ireland highlights the need to seek justice for these victims and ensure such horrors never occur again within Irish shores. The women, children, and survivors of these horrors deserve to know the truth, to find peace, to find justice. If the walls of the St Mary’s Mother and Baby Home could talk, what atrocities would it uncover? Only time and truth will tell.
Photo courtesy of Matthew O’Shea, SS Law and Business
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The Long Road to Justice: Driving Licences for Asylum Seekers in Ireland By Matthew O’Shea, Editor in Chief, SS Law and Business, and Liam Ó Lionáin, SS Law and Business In the recent High Court judgment of Landsberg & Breetzke v NDLS & Others, two South African asylum seekers successfully challenged the refusal of the Road Safety Authority (RSA) – acting through the National Driving Licence Service (NDLS) – to grant them full Irish driving licences. The RSA contended that the applicants could not be issued Irish driving licences as, in its view, they had failed to demonstrate that their normal residence was in Ireland. The Irish Human Rights and Equality Commission (IHREC), arguing on behalf of the applicants, submitted that the asylum seekers’ normal residence was in Ireland, irrespective of their status as asylum seekers. The IHREC relied on the wording of the Road Traffic Regulations (Licensing of Drivers) Regulations 2006, asserting that it was discriminatory to require the applicants to meet a higher standard of ‘residence’ than is required of any other person resident in Ireland. Judge Mark Heslin ruled that, as the applicants are lawfully resident in Ireland, they are eligible to receive Irish driving licenses. In coming to this decision, he considered both the pertinent EU Directive and the 2006 Act, noting that neither piece of legislation cites immigration status as a relevant factor, and focused on the absence of any requirement in the relevant legislation for a licence-seeker to have what the RSA termed “regular immigration status.” He held that the strict terms of residence afforded to asylum seekers do not make the applicants’ residence any less lawful than that of any other resident. He expressly referenced feeling “obliged” to reject the RSA’s assertions that the asylum seekers ought not be entitled to Irish driving licenses. Judge Heslin’s judgment was quite critical of the RSA’s approach, stating that the inclusion of a minimum threshold of time spent as a normal resident of Ireland would “do violence to the words used in the 2006 regulations.” He stated that “it would strain beyond breaking-point” the wording of the regulations if the applicants were compelled to demonstrate their normal residency beyond merely showing that it is not unlawful. Judge Heslin quashed the RSA’s decision not to exchange the applicants’ driving licenses for Irish ones. Reaction to the Decision This decision has been celebrated by human rights organisations across Ireland. Sinéad Gibney, Chief Commissioner of IHREC, welcomed the decision, aptly summarising the importance of driving licences as “[not] just a plastic document, it’s a tool for finding and getting to work, for bringing children to school and childcare, for visiting your friends and generally being part of society…” Gibney continued: “Despite commitments made by Government, these individuals and families have been left for too long, often in remote rural settings with limited public transport, their work, educational and social opportunities stifled. We hope that they will now be able to get on with their lives, and to pursue such opportunities without further interference.” This strong endorsement of the decision by human rights proponents makes clear the importance of these seemingly mundane documents for integration and inclusion in law and society. General Access to Justice for Asylum Seekers The decision, therefore, marks a distinctive step in the right direction in affording asylum seekers adequate protection and opportunities in Ireland. However, it also shows that there is still progress to be made. The direct provision system, under which the Government provides “support” to asylum seekers, has widely been criticised as lacking effective assistance and protection. Under the scheme, asylum seekers are entitled to a
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place to live, meals, a weekly payment of €38.80 per adult and €29.80 per child, and a medical card. For many commentators, it does not afford adequate protection to those who enter into it, and prolongs the struggle of those seeking asylum in Ireland. The living conditions under direct provision have been reported on by Doras - independent NGO working to promote and protect the rights of people from a migrant background in Ireland - which has highlighted how the average time spent in the centres is 2 years, with some asylum seekers spending as many as 10-12 years. Doras also highlights how the centres are run by private contractors on a for-profit basis on behalf of the State, and inspection focuses largely on health and safety compliance, with comparatively little attention given to social and emotional needs of residents. Large numbers of asylum seekers across the European Union have only been able to access the labour market since 2018, under the European Communities (Reception Conditions) Regulations. In Ireland today, according to the Citizens’ Information website, asylum seekers are not allowed to work until they have been waiting for six months for the International Protection Office (IPO) to issue its first decision on their application. This marks a further challenge for asylum seekers, who must endure this time of unemployment before being able to access the Irish labour market.
The COVID-19 pandemic has magnified the injustices facing asylum seekers, and the need for reform in this area in Ireland. This spans much wider than something as simple as driving licences. For those who could not drive themselves around over the past two years, reliance on public transport grew more difficult with reduced capacities across buses and trains. This is particularly relevant to those working in factories and meat plants, which largely remained open through lockdowns, making an already difficult mode of transport even more difficult. Our public transport system, particularly in rural areas, has widely been criticised for its lack of widespread coverage. Without access to proper transport facilities, those without the ability or resources to drive face significant challenges. Dr Fiona Murphy, Senior Lecturer at the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast has highlighted the pandemic’s specific impacts on direct provision centres, where social distancing and isolation were often near impossible if not overtly impractical. Murphy joins the established group of commentators calling for the abolition of direct provision, arguing that “the pandemic has proven that [it] is a system which fails individuals and families seeking international protection. It is clear that much harm has already been engendered through this system, now further compounded by the pandemic.” Murphy also highlights how asylum seekers who were furloughed or lost their jobs were unable to register for the Pandemic Unemployment Payment of €350 per week, in spite of lobbying by NGOs and activists around the country. The recent decision of the High Court, therefore, is to be welcomed in its affording to asylum seekers increased autonomy and freedom in their day-to-day lives. Conclusion The struggles of asylum seekers in this country have widely been reported for some time. Already-existing struggles from direct provision have been exacerbated by the pandemic. It is encouraging, therefore, to see this decision by the High Court. A driver’s license may indeed represent a small step in the right direction, but it certainly opens the door for further improvement. Access to justice is certainly about more than accessing places around the country, but the ability for asylum seekers to drive with full licences highlights a step in the right direction on this long road to justice.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Environment
Victims of the past, present and future? - Environmental Injustice and Indigenous Populations in the United States and Australia By Samantha Tancredi, SS Law and Political Science & Katharina Neumann, Deputy Editor, SS Law and Political Science The right to environmental justice can be derived from numerous different articles within the Universal Declaration of Human Rights, including the right to an adequate standard of living enshrined in Article 25, the right to enjoy one’s own culture and participate in cultural life in Article 27, and the right to security of the person under Article 3. Several of these rights are reiterated in the UN Declaration on the Rights of Indigenous Peoples, a comprehensive instrument detailing the entitlements of native populations by setting minimum standards for the recognition, protection, and promotion of these rights. The Declaration outlaws discrimination against indigenous peoples and promotes their effective participation in all matters. Despite these ambitious promises, indigenous people often lack effective access to environmental justice, preventing them from exercising their human rights, leading to inherent environmental injustice. This article adopts an understanding of environmental injustice by Professor Juliana Maantay at EEGS Department at Lehman College and is the founder and Director of the Geographic Information Science Program. The definition states: “Environmental injustice is the disproportionate exposure of communities to pollution, and its concomitant effects on health and environment, as well as the unequal environmental protection and environmental quality provided through laws, regulations, governmental programs, enforcement, and policies.” This all-encompassing definition allows for the specific acknowledgement of one or more components for further analysis. This article will explore both parts of this definition through two different case studies. The first is the disproportionate exposure of indigenous communities to environmental hazards, and will be examined with reference to the Native American Population in the United States. Aboriginal and Torres Strait Islander people’s circumstances within Australian society will on the other hand showcase unequal environmental protection under the law. United States of America: Disproportionate Exposure of Native American Tribes to Environmental Hazards The horrific events of the Church Rock Nuclear Spill occurred on July 16, 1979 on the Navajo reservation at the United Nuclear Corporation facility in Church Rock, New Mexico, USA. The spill itself happened as a result of a defect in the earthen dam system which was used to contain nuclear mine mill wastes. It is marked by University of South Florida Criminology Professor Michael Lynch as being “the largest yet most neglected nuclear accident in US history…with 1,100 tons and 95 million gallons of nuclear waste.” This spill directly contaminated water and land resources and contributed to health issues in the indigenous population. Lynch further remarks that “Church Rock is a small Navajo community with a population of 1,633 in 1980 [according to the US census], and approximately 12 per cent of that population was employed in uranium mining.” However, the breadth of damage is revealed as the community faced further hardship with the contamination of groundwater of the Puerco River, its main water source.
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After the spill took its toll, the United Nuclear Corporation requested to resume its operations due to financial hardship. The federal government granted this petition. Clearly, this merely exacerbated the tragedy that had gone unaddressed, increasing the extensive damage to water contamination. This cognizant decision to prioritize economic gain over health, safety, and environmental concerns ultimately led to the addition of Church Rock to the US Environmental Protection Agency’s (EPA) EPA’s National Priorities List as a superfund site. In brief, author for National Geographic Mary Schons defines a superfund site as the “common name given to the law called the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or CERCLA. Superfund is also the trust fund set up by Congress to handle emergency and hazardous waste sites needing long-term cleanup.”
These bureaucratic decisions, without input from those directly suffering at the expense of a corporation’s neglect, have arguably led to further damage. This is best demonstrated by the shocking health statistics that highlight the lamentable consequences of uranium exposure, including the rate of kidney disease among the Navajo being three times higher than the age-adjusted rate for the US population at large. There is no way to isolate the personal and environmental damage done. It is argued that most of the environmental justice issues faced by this specific population stem from non-tribal management. Dr Darren Ranco, an Associate Professor of Anthropology and Coordinator of Native American Research at the University of Maine articulates, “Environmental justice in the tribal context cannot be contemplated apart from a recognition of American Indian tribes’ unique historical, political, and legal circumstances.” This is clear in the outcome of Church Rock, a case where non-Native American leadership and management led to depletion and contamination of tribal resources. Moreover, Ranco notes that Native Americans operate on a unique style of environmental management based on a “responsibilities” model. This refers to the fact that “tribal people throughout the Pacific Northwest long ago made a covenant with the salmon and the other first foods, [where they] promised the salmon that they would take care of the salmon and its home. The salmon, for their part, promised to return every year to provide food for and take care of the fishing peoples.” This covenant creates responsibilities for both parties. With non-tribal representation of these lands, there is no way to preserve this traditional system, and it will face endless exploitation. These tenets may be synthesized in an environmental context. A lack of access to environmental justice stems from the fact that there is a lack of political representation. The lands granted to Native communities under reservation treaties were known to be arid and essentially unfarmable, but they were later discovered to store significant resources such as copper, oil, coal, and uranium, which are of great interest to large corporations and the US government. This led to massive exploitation of the Native American population, whereby the federal Government rescinded and modified the treaties in an effort to retake the land and enter new, coercive contracts, the very definition of “disproportionate exposure of communities to pollution, and its concomitant effects.” Moreover, this is compounded by the fact that the remaining Native territories are in close proximity to toxic waste, a clear hazard. This environmental consequence poses implications on human health through contamination of water and food sources, causing illness and resulting health conditions. This leads to a discussion about the future of environmental justice concerning the Native American population – is there a solution in sight? It seems that there is a gleam of hope for a more equitable future. As Forbes journalist Carlie Porterfield writes, in the 2020 US elections, “more Native Americans were elected to Congress than ever before,” with six newly elected representatives with Native American heritage claiming seats. This ensures that previously hidden voices will be given an opportunity to both act and speak in Congress, working together with federal agencies to enact positive, realistic change and end any future exploitation. Photo courtesy of Samantha Tancredi, SS Law and Political Science
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Environment
Beyond tribal recognition, a push for a “more culturally defined notion of human health, calling for ‘new integrating tools’ between the impacts of pollution on culture and human health” would enable environmental justice. The impacts faced by Native American groups extend beyond the classic risk assessment model, and reform would allow these tribal communities to define health in culturally appropriate ways. As with any significant change, this will not occur overnight, but the correct measures are arguably being taken, and the path toward access to environmental justice is being carved. Australia: Aboriginal and Torres Strait Islander People’s Unequal Environmental Protection under the Law The devastating Australian bushfires were likely the defining event of the Southern hemisphere’s 2019/2020 Summer. Footage of a sea of flames covering miles and miles of the Australian outback, destroying homes and killing native animals circulated around the world. However, what received little attention was the disproportionate impact the wildfires had on different parts of Australian society. The Royal Bushfire Commission reported that a quarter of the indigenous population of New South Wales (NSW) and Victoria lived in bushfire-affected areas that year. Further, while indigenous people comprised 5.4 per cent of people living in fire-affected areas, this group comprised only 2.3 per cent of the total population of NSW and Victoria, illustrating that indigenous Australians were disproportionately affected by the fires. Moreover, as Aboriginal and Torres Strait Islander people hold unique and significant legal rights and interests in lands within the fire-affected area under the different Aboriginal Land Right Acts of the states, their inability to exercise these rights due to destruction of the lands reflects additional disparity. It is important to note that fires are an inherent part of indigenous land keeping, managed through cultural burning, a skilful practice of using low-intensity fires to remove fine fuels on the forest floor. However, the uncontrollable nature of the climate change-induced fires led to the destruction of aboriginal sacred places, which are inherent to indigenous identity. Despite this fundamentally disproportionate impact, Aboriginal and Torres Strait Islander people are still overlooked in the bushfire response. Policymakers have failed to include them in the reports of two major post-bushfire inquiries. Both inquiries demonstrate noticeable neglect of Aboriginal people’s priorities, a mere rhetorical relegation to the past and only the most superficial inclusion of their interests. For example, in Volumes I–III of the 2009 Victorian Bushfires Royal Commission Final Report there are merely two references to Aboriginal people. This results in Aboriginal and Torres Strait Islander people experiencing land dispossession and deprivation of land rights without government redress.
There is no question that this “unequal environmental quality provided through laws” is manifested by pre-existing inequalities, most of them inheritances from colonial rule as the legacy of trauma and loss continues to haunt many indigenous Australians today. Aboriginal and Torres Strait Islander people are still not mentioned in the Australian Constitution and merely 2.6 per cent of members of the 46th Australian Parliament identify as indigenous. Despite several government initiatives, indigenous Australians continue to be disadvantaged on every level, from health and education to life expectancy, indicating that indigenous Australian voices remain widely unheard. However, it is suggested that access to environmental justice is restricted on another level. Casting pre-existing inequalities aside, issues transpire regarding the paradigms used in environmental decision making and land use as they are contrary to indigenous teachings and understandings. Indigenous people have a deep, unbroken connection to their ancestral homelands, to which both their culture and identity are linked. In their
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worldview, there is no separation between people, land, and other forms of life, and there is a deep relationship of reciprocity, respect and responsibility between those elements. Opposed to this, Western nations treat the environment as a resource, basing decisions on opportunity cost, strictly dividing between humans and nonhumans. Decisions based on this narrative fully contradict indigenous teachings. This forecloses Aboriginal and Torres Strait Islander people from any meaningful access to environmental justice, although this is arguably most important to them due to their strong connection with land. Environmental decision making does not sufficiently consider indigenous worldviews and fails to recognise that the settler-colonial views that persist in society exacerbate environmental injustices for indigenous peoples. Thus, to enable equal participation of Aboriginal and Torres Strait Islander people in environmental decision making and to provide more comprehensive environmental protection under the law, it is submitted that not only do the commonly referred roadblocks need to be removed but a new foundational concept to conceptualise nature is required. Philosopher Christine Winter argues for “accounts of environmental justice to move beyond Western liberal thought to meaningfully include Indigenous epistemologies” to enable Aboriginal and Torres Strait Islander people’s equal voice in environmental decision making. Conclusion Access to environmental justice is critical for all. However, as this article stipulates, indigenous groups require specific mechanisms to achieve this. As the case study from the US illustrates, increased access may be achieved through recognition of native culture and political representation in order to ameliorate the “disproportionate exposure of communities to pollution.” Similarly, the Australian case demonstrates that indigenous teachings need to be transposed into environmental decision making procedures to create a more equal “environmental quality provided through laws.” Jointly, these illustrations highlight not only the necessity for increased access to environmental justice for indigenous people but also the need for heightened exposure of these salient issues.
Photo courtesy of Katharina Neumann, SS Law and Political Science
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Environment
The Green Wall: Access to Environmental Justice in Ireland By Eoin Jackson, SS Law This article will address the lack of access to environmental justice within the Irish legal system. Part I highlights the financial barriers present for environmental activists. Part II discusses the lack of specialist knowledge on environmental matters and the subsequent impact this can have on ecological cases. Part III proposes the establishment of a dedicated Irish Court of Environmental Justice to ensure an appropriately ecocentric legal framework exists, conducive to an accessible justice system. I. The Financial Barrier to Environmental Justice A primary barrier to environmental justice is the cost of litigation. Ireland does not provide civil legal aid for cases typically concerned with environmental justice, such as those pertaining to planning, pollution control or attempts to encourage a better climate response. Costs can run into the hundreds of thousands and there is a legitimate concern that the loss of a case could result in the financial demolition of environmental activists. For example, in the case of FIE v The Legal Aid Board [2020], it was determined that the plaintiff, an environmental activist NGO, was not entitled to legal aid on the basis that an NGO is not a natural person. Consequently, environmental justice suffers from being unable to have its representatives advocate through the courts without serious financial risks. It should be noted that these cost barriers could be seen as being in contravention to the Aarhus Convention. The Aarhus Convention, which Ireland ratified in 2012, mandates access to justice in environmental matters. It outlines access to environmental information as a right and offers a ‘check’ on policymakers by encouraging a right to review procedures to ensure their environmental compatibility. Despite efforts to implement the Convention’s measures, this has only been achieved where the matter concerns EU law. Thus, little assistance is available to a marginalised community seeking to challenge local environmental issues or the government’s response to climate change. II. The ‘Knowledge’ Barrier Environmental justice also suffers from the lack of specialist knowledge often experienced by local communities and public interest lawyers. The complex swathe of international, EU and national legislation on the environment requires a high degree of training and specialisation. Indeed, comparative reports have demonstrated a belief that the overly technical nature of environmental law makes it a much more difficult area for public interest lawyers as opposed to more common issues such as employment law and family law. Furthermore, the field may require experts such as climate scientists to present evidence before the court, which ultimately adds to the aforementioned cost barrier. In an Irish context, it is argued that this ‘knowledge’ barrier has been exacerbated by the relative absence of lawyers specialising in environmental justice. Up until the establishment of the Centre for Environmental Justice in 2021, there was no public interest group dealing specifically with these issues. This ‘knowledge’ barrier is compounded at a judicial level, given the nonexistence of any specialist court dedicated to environmental and planning issues. This has proven to be effective in overcoming ‘knowledge’ barriers through specialisation and training for judges within such a court. III. Proposed Solution - An Irish Court of Environmental Justice The proposed solution to this issue is the establishment of a dedicated Court of Environmental Justice. This Irish ‘Green Court’ could draw on the approach taken in comparative jurisdictions, such as the Philippines,
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by employing judges with specific training on environmental matters. From a financial perspective, the Court could further be equipped to recognise environmental NGOs as natural persons for the purpose of allowing access to legal aid. This would encourage marginalised communities to challenge environmental concerns before the Court through the potential funding of environmental organisations such as the Centre for Environmental Justice. Additionally, a more liberal approach to protective cost orders could serve to assuage fears of financial harm in the event that a case is unsuccessful.
The constraints of a traditional court can be set aside, given this breaking down of financial barriers only applies in the specific context of environmental litigation. This avoids floodgate concerns without compromising on the need for financial flexibility in environmental litigation. The knowledge barrier can also be addressed through a more environmentally-conscious interpretation of cases, which can be linked to the Court’s wider degree of expertise. There is the potential to expand on the number of remedies available to Irish judges within this Green Court. For example, the Philippine environmental court allows communities to petition for the suspension of activities harmful to the environment. Additionally, it could adopt a relaxed approach to standing, conducive to the increased recognition of environmental activism. Thus, the initial issue of having to introduce judges to a complex area of law before the environmental matter in question can be appropriately argued before the Court would be avoided. This ensures that the Judiciary can adopt an ecocentric approach to resolving cases, thereby widening access to justice for the community at large. By placing all sides on an even knowledge platform, an educative barrier dissipates, which in turn encourages public involvement with developing approaches to future ecological policy. It could be argued that a Green Court is unfeasible and unnecessary to establish to resolve these issues of access to environmental justice. However, comparative experience as evidenced by the Philippines has demonstrated that Courts of this nature lead to increased environmental ligation from communities that would otherwise be excluded from ecological discourse. Additionally, a Green Court would align with the obligation to increase access to environmental justice as mandated by the Aarhus Convention. Furthermore, the current Irish government has committed to establishing a wing of the High Court dedicated to environmental litigation. While not entirely synonymous to an independent Green Court, it does highlight the political and economic feasibility of its implementation. Conclusion In conclusion, access to environmental justice remains a pressing issue within Irish jurisprudence. An Irish Court of Environmental Justice, equipped with a financial toolkit and appropriate expertise, would allow for broader recognition of environmental justice. This Court is both legally and politically feasible, and should be enacted as it would be a useful starting point to overcoming barriers to environmental justice.
Photo courtesy of Matthew O’Shea, SS Law and Business
Photo courtesy of Matthew O’Shea, SS Law and Business
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Interview
The Eagle Interviews Emma Boylan, Associate Solicitor at the Maples Group By Emma Bowie, JS Law Emma Boylan is an Associate Solicitor at the Maples Group in Dublin and a member of the firm’s pro bono committee. After graduating from Trinity with a BA in History and English Literature in 2015, Emma undertook two postgraduate law degrees before joining the Maples Group as a Trainee Solicitor in 2018. In this interview, she speaks to Editorial Board member Emma Bowie about her professional journey, the Maples Group corporate social responsibility initiative, and the benefits of pro bono work for local communities in Dublin. Photo courtesy of Emma Boylan & The Maples Group
You have had quite a varied educational path, having initially studied English and History at Trinity, after which you pursued a Postgraduate Diploma in Law at DIT, and then a Master of Laws in Trinity. Why did you decide to pursue a legal education after your initial undergraduate degree? When I finished my undergraduate degree, I did not have any inkling of what I wanted to do. When you finish an Arts degree, there can often be a push to go into a postgraduate degree of some sort, but at that point in my life, I really wanted to do something practical and be out in the workforce. A few of my friends had mentioned that a career in law would be a good fit for somebody who had studied history – there are quite a lot of parallels in terms of how law and history approach their subject matter – and so I decided to apply for the one-year DIT postgraduate course. I really loved it – the course provides a really helpful introduction to the core law modules, and is also geared towards FE1 study. Once I had finished the diploma, I decided that I would do the LL.M. in Trinity, and use that year as an opportunity to have a better building block for my legal career. I found the LL.M. and the diploma to be quite different: while the diploma was focused on core modules such as contract and torts, the subjects available to study in the LL.M. course were quite varied, ranging from the death penalty in the US to Islamic law. I think it is good to have a pairing of the academic and the practical when studying law, as having a sense of general legal principles is always helpful in the practice of law. By the time that I had started my training contract with the Maples Group, I managed to complete the LL.M. course as well as my FE1 exams. Why did you decide to pursue a career in corporate law, and specifically, what attracted you to working with the Maples Group? I did a three week internship with the Maples Group Corporate team after completing my initial postgraduate diploma. I only had one year of law under my belt at that stage, but even with that, I found that studying and
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practising law were quite distinct disciplines. I really fell in love with the Maples Group – the firm fosters such a warm and inviting atmosphere and one of the things that was really important for me, coming from an academic background, was a real openness and expectation of learning. The senior partners are as involved in the learning process as the junior associates, and there are mentors available at every level encouraging you to become the best lawyer you can be. Before my internship, my experience of law firms was what I saw on TV - the stereotype of the terrified trainee lawyer being afraid to ask questions – but this was not my experience at all! The culture of learning, openness and friendliness of the firm is really what drew me to the Maples Group. What was also attractive was the global nature of the firm - there are many secondments available abroad in Hong Kong, Jersey and the Cayman Islands, and even staying within Ireland, you have the opportunity to work with international legal teams, which is exciting. In terms of choosing to pursue a career in corporate law, I think there is quite an attractive structured career path: you get your training contract, qualify to become a junior lawyer, and then work your way up the ranks. Of course, corporate law is not for everyone – and nor should it be, given the range of opportunities that are available for someone with a law degree – but personally, I was really drawn to the structure and the subject matter of the corporate field. I am now working in finance, which was the seat I enjoyed the most as a trainee solicitor. It is hard work, but it is good work: I think that at the end of the day, no matter what you go into you will be working hard, so I think that you need to pursue something which will continue to energise you, day after day! You are a member of the Maples Group Corporate Social Responsibility Committee and pro bono committee. Could you describe some of the pro bono and CSR initiatives that are currently ongoing, as well as your own role within the pro bono team? Earlier this year, the Maples Group in Dublin revitalized its pro-bono initiative. We partner with a number of pro bono legal programmes, including TrustLaw (under the Thompson Reuters Foundation), the Public Interest Law Alliance (run by FLAC), and Irish Rule of Law International. In my capacity as liaison for the pro bono team, I find a home for the pro bono cases which are referred to us through these partnerships and assess whether we can assist with a particular case. Occasionally, we are also involved with multidisciplinary research projects. Of course, this is not what you usually would be doing in your day-to-day job in a corporate firm, and I think this is what makes the work attractive for many people. I am involved with the CSR Committee specifically through the pro bono team. We conduct charity partnerships annually and this year we have committed to supporting two ‘core’ charities in particular: St Michael’s House, which provides a comprehensive range of services and supports to people with intellectual disabilities and their families in the greater Dublin Area, and BasisPoint, which is an organisation that coordinates support for a number of charities and programmes, with a particular focus on funding educational programmes. There are other charitable initiatives w hich we support and help organise on an annual basis, such as the Calcutta Run in aid of the Hope Foundation and Peter McVerry Trust. Also, as part of our “Business in the Community” mentorship programme, volunteers in our Dublin office are paired with 5th year students in a local school for one-to-one mentorship sessions every few weeks.
It is reassuring to see how we have been able to continue with our CSR work, even in Covid times, as it is more difficult in terms of organising people and coming up with event ideas that are not Zoom-related! It is also encouraging to see people continue to be generous with their time and financial donations in support
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of these initiatives. In your opinion, what are the particular benefits of pro bono work for both commercial firms and local communities in Dublin? I think it is really important for local firms to get involved with pro bono work to use their resources to give back to communities in Dublin.
The idea behind pro bono is that you are assisting communities and charities that would otherwise really struggle to get legal advice. Making laws legible for people, and helping them to understand their legal rights and obligations, is a really important part of enabling these organisations to be as effective as they can be. As someone coming from a non-law student background, I recognise that law is not necessarily very accessible for many people – you cannot expect someone to pick up a statute book and read it cover to cover and understand the nuances of it – so it is important to bridge that gap as much as possible. Corporate law firms have really talented and experienced people who can give back in that way, and from what I’ve seen, people are always eager to get involved. One thing that I have noticed in the projects that we’ve undertaken is that there is a very broad range of practice groups that are involved: from issues such as corporate governance, to employment policies, to tax advice, the requests for legal advice are extremely varied, and it is brilliant to see programmes such as PILA finding suitable partners to assist various organisations in these discrete areas. Ultimately, I think it is important for us to give back and that those organisations are getting the help that they need to flourish in all their activities. There is so much work out there that needs to be done, and I know the Maples Group is very keen to grow its pro-bono initiative in this respect. Do you have any advice for non-law undergraduate students who are perhaps considering postgraduate legal studies or a career in law? I would say: do not be afraid to give law a try if it is something that you are interested in! I find that members of our generation rush to plan out their lives and careers at an early age, but it is important to recognise that nowadays, people often change their career paths, or do not start their career until later in life. You do not have to have everything figured out at twenty-two! Sometimes people may be reluctant to change field in a postgraduate setting because they may feel that they have wasted four years of their undergraduate degree, but my advice would be that your undergrad will always stand to you no matter the subject – even if the subject is different, critical reading or writing skills will always be transferable. If law is something you are interested in, do not be afraid to pursue it.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Language
Áisiúlacht an Aonteangachais sa Dlí agus sa Stát Le Ellen ní Aoláin, Cóipeagarthóir, SS Dlí & Eolaíocht Pholaitiúil Author’s note: I have not provided an English translation for this piece because I believe it goes against the sentiment I have outlined below. Too often, the Irish language is brushed aside as an inconvenience and a waste of time. This is one of the reasons why Ireland, among other things, does not provide translations for Government debates, has weakened the Irish language requirements for many professions, and generally has allowed the language to fall into disuse. Through not providing a translation, I am resisting the idea that English is the default, and taking away a convenient translation that many, including myself, would likely flock to in spite of them being able to read the Irish version. If you would like a translation of the core ideas contained in the article, please feel free to email eaglegazette.tcd@gmail.com Réamhrá Níl aon amhras ach go mbíonn tagairt don Ghaeilge go minic i sochaí na hÉireann. Ó chomharthaí bóthair, go hóráidí polaitiúla, go TG4, tá sé deacair maireachtáil in Éirinn gan cúpla focail. In ainneoin seo, bíonn an teanga de shíor i mbaol; de réir daonáireamh na hÉireann 2016, níor labhair ach 73,803 duine Gaeilge chuile lá, agus dúirt 418,420 cainteoirí Gaeilge ní labhraíonn siad an teanga ar bith. San alt seo, cuirfear sean argóint chun cinn – nach bhfuil mórán iarrachta á dhéanamh ag institiúidí na hÉireann an Ghaeilge a athbheochan – le argóint níos soiniciúla – go bhfuil sé níos furasta don rialtas glacadh le bás na Gaeilge de ghrá na héascaíochta. An Dlí: Gaeilge ar an Dara Leathanach De réir Airteagal 8.1 sa Bhunreacht, “[ó]s í an Ghaeilge an teanga náisiúnta is í an phríomhtheanga oifigiúil í.” Is íoróin mhór í go bhfuil an Bunreacht scríofa as Béarla i dtosach báire, leis an nGaeilge i gcónaí ar an dara leathanach. Ní fadhb bheag í seo ach an oiread. Sa chás Ó Maicín v Éire (2014), cinntear go raibh sé míbhunreachtúil giúiré a aimsiú a raibh Gaeilge agus Béarla acu (mar a bhí á lorg ag an ngearánaí, Ó Maicín) toisc go mbeadh sé mícheart daoine dátheangach a aimsiú agus a rá gur sampla randamach den daonra iad. Bhí láncheart ag Ó Maicín a fhianaise agus a argóintí a thabhairt as Gaeilge, agus is féidir a áitiú nach bhfuil sé éifeachtúil nó cóir aistritheoir a úsáid chun fianaise thábhachtach - ar a bhfuil saoirse an chosantóra ag brath – a léiriú go háirithe nuair a dhéantar an cás trí theanga oifigúil an stáit. Ina bhreithiúnas easaontach, léirigh Hardiman B an tuaraim céanna: “…[I]n this constitutionally bilingual State, no-one has a right to serve as a judge, or as a member of a panel of judges (as in the Special Criminal Court) or as a juror, in any case the official language of which he or she cannot understand.” Labhair sé freisin faoin difríocht idir chearta teanga in Éirinn agus i gCeanada. I gCeanada, tá béim dháiríre curtha ar an bhFraincis sa dlí agus i gcleachtas. Anseo, tá béim curtha ar an nGaeilge sa dlí, ach níl aon bhéim uirthi ó lá go lá. Ní bheadh ionadh ar éinne atá paiseanta faoin nGaeilge go bhfuil cosantóirí mar Ó Maicín imeallaithe i bhfabhar áisiúlacht na cúirteanna a rith i dteanga an mhóraimh. Tá áisiúlacht an aonteangachais le feiceáil freisin sna leasaithe ar Acht na nDlí-Chleachtóirí (An Ghaeilge) 2008, inar athraíodh sean-riail a luaigh go gcaithfeadh cumas éigin a bheith ag abhcóidí ar an nGaeilge. Anois, tá ar Óstaí an Rí cúrsaí Gaeilge a chur ar fáil, ach níl siad riachtanach chun cáilíocht a bhaint amach. Tá daoine
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ann atá ag iarraidh an sean-riail a thabhairt ar ais - rinne Teachta Dála Aengus Ó Snodaigh iarracht níos luaithe sa bhliain ach níor tháinig aon rud as an iarracht – ach faoi láthair níl ach dá faoin gcéad d’abhcóidí na hÉireann ábalta ionadaíocht a dhéanamh dá gcliaint trí Ghaeilge. Is féidir a thuar go laghdóidh an figiúr sin amach anseo de bharr go gcuireadh deireadh leis an riail i 2008. Is sampla eile é seo den ord tosaíochta atá againn sa stát, a chuireann an éascaíocht i gcónaí os comhair an Ghaeilge. An Stát: Easpa Acmhainní nó Easpa Suime? Go hoifigiúil, tá an-mheas ag an rialtas ar an nGaeilge. Tá Aire Gaeltachta againn, tá spreagthaí ann do dhaltaí na hArdteistiméireachta a gcuid scrúduithe a dhéanamh trí Ghaeilge, agus beidh ar 1/5 d’oibrí sa tseirbhís phoiblí Gaeilge a labhairt roimh 2030. In ainneoin na scéimeanna seo, is féidir a argóint nach dtugtar tús áite riamh don Ghaeilge sa rialtas. Sampla comhaimseartha ná na teastais COVID-19, nach raibh ábalta déileáil le fada ar roinnt ainmneacha Gaelacha. Is léir nach raibh an fhadhb leis an gcóras é féin, ach leis an eolas a bhí tugtha dóibh ó ospidéil agus institiúidí stáit eile nach raibh in ann an fada a phróiseáil. Is í seo an t-aon chúis nár aistrigh údar an ailt seo a sloinne go Gaeilge – bheadh fadhbanna aici lena cárta Leap, lena taifid ospidéil, agus le fuaimniú agus litriú a sloinne (Ní Aoláin) gach áit a rachadh sí. Mura féidir leis an stát (agus an tsochaí) aire a thabhairt d’ainmneacha Gaeilge ina dtaifid agus ina mbunachair sonraí, conas gur féidir leo aird a thabhairt don Ghaeilge í féin? Réimse eile inar theip ar an rialtas dóthain suime a léiriú sa Ghaeilge ba iad ndíospóireachtaí sa Dáil. Sa chéad agus dara Dáil, ritheadh formhór de na díospóireachtaí trí mheán na Gaeilge. Sna 2010dí, thit an figiúr seo go thart ar 2-3 faoin gcéad. Tá deacrachtaí ag an Oifig Dhíospóireachta sa Dáil foireann atá líofa a fháil, agus níos mó deacrachtaí fós foireann atá ábalta gearrscríobh a dhéanamh as Gaeilge a aimsiú. Chun comparáid a dhéanamh le Ceanada arís, cuirtear dhá leagan don díospóireacht ar fáil ann – ceann as Béarla agus ceann i bhFraincis.
Mar sin, tá gnóthaí an Oireachtais rite i dteanga iasachta, an Bhéarla, agus níl aon aistriúchán do dhaoine atá ag iarraidh gnóthaí an rialtais a léamh ina “phríomhtheanga oifigiúil.” Conclúid Chun cearta teanga a bhaint amach, caithfear cumhachtaí an stáit níos mó suime a léiriú sa Ghaeilge. Gach uile uair a úsáidtear clár ríomhaireachta nach bhfuil ábalta an fada a phróiseáil; gach uile chéim sa dlí a bhaintear amach gan aon riachtanais Gaeilge; agus gach uile uair a chuireann an rialtas, an dlí, agus an phobail teanga dhúcasach na tíre ar an dara leathanach i bhfabhar áisiúlacht an aonteangachais, déantar dochar millteanach don teanga agus do chultúr na tíre.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Rochtain ar Cheartas: Access to Justice for Gaeilgeoirí By Muireann McHugh, SF Law De réir Bunreacht na hÉireann, cosnaítear cearta na Gaeilge go sainráithe. De réir Airteagal 8, is í an Ghaeilge an céad teanga oifigiúil na hÉireann. Tá cosaintí ann de réir reachta freisin. Ach, in ainneoin an aird a thugann Bunreacht na hÉireann do chearta teanga, tá sí siombalach ar an iomlán. In ionad cosaint láidir a thabhairt do Ghaeilgeoirí, bíonn siad fágtha le Béarla a úsáid i socruithe oifigiúla, mar shampla sa chóras dleathach. Mar sin, bíonn sé deacair do Ghaeilgeoirí rochtain a fháil ar cheartas, toisc gur mhainnigh an Stát a dhualgais bunreachtúla. Article 8 of the Constitution affords the highest legal protection to Irish language rights. However, this “protection” seems to be largely symbolic. Notwithstanding the efforts of the drafters of the Constitution to place the Irish language on a high footing, the English language has become dominant in Irish society. This makes it nearly impossible for Gaeilgeoirí (Irish language speakers) to use their spoken language when dealing with official or governmental authorities; including those within the legal system. Irish-speaking defendants facing the judicial process are presented with limited options, and it is challenging for Gaeilgeoirí to find an adequate avenue for justice. This begs the question; what rights do Irish speakers have in the administration of justice? Cearta agus Teidlíochtaí Gaeilgeoirí sa Chóras Dleathach Rights and Entitlements of Gaeilgeoirí in the Legal System Section 8 of the Official Languages Act 2003 deals directly with the administration of justice for Irish-speaking people. As per s.8(2), anyone appearing in court or offering evidence can use their language of choice without “discrimination.” In civil proceedings where the State or some State body are party, the other party can use their language of choice. Significantly, no provision is made with regards to language for criminal trials (trialacha coiriúla). The practical difficulties that would be involved, such as Irish speaking Gardaí, solicitors, witnesses etc were deemed too great to overcome. In the case of MacCarthaigh v Éire, the Supreme Court held that a defendant of a criminal trial is not entitled to an Irish speaking jury (giúiré). It was found that to limit the jury to such an extent would be inconsistent with the legal requirement for a jury to be made up of a sample of the entire population of Ireland, not just the two per cent who are Irish speaking. Two landmark cases which furthered the development of Irish language rights were the cases of Ó Beoláin v Fahy and Ó Cadhla v The Minister for Justice and Equality. The Ó Beoláin judgment confirmed, for the first time, that the State had a duty under Article 8 to translate Acts of the Oireachtas. This is a significant judgement in the promotion of access to justice for Gaeilgeoirí, as it enhanced their ability to read and understand the law, and regulate their conduct accordingly. In Ó Cadhla, Ní Raifeartaigh J held that the State has a constitutional duty under Article 8 to make “reasonable efforts” to assign a bilingual judge (breitheamh) in a criminal trial. In many respects, this decision is to be welcomed, but it does not go as far as conferring a positive duty onto the State. Thus, there is no guarantee that an Irish-speaking defendant will be tried by an Irish speaking judge, which hugely hinders a Gaeilgeoir’s access to justice. Evidently, there is judicial reluctance to vindicate express constitutional language rights. Drogall Breithiúnach agus Dualgas an Stáit Judicial Reluctance and the State’s Duty The jurisprudence surrounding Irish language rights cases suggests a willingness to recognise the validity of these rights under Article 8 of the Constitution, but a reluctance to posit a duty on the State to fully vindicate these language rights. Cases normally deal with individual redress instead of sweeping change for Gaeilgeoirí.
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For example, in Ó Cadhla, Ní Raifeartaigh J held that her findings were not intended to have any “wider application” than a defendant facing criminal trial in the District Court (Cúirt Dúiche). This aspect of the judgement has clear negative implications on Gaeilgeoirí in their pursuit for justice, because their language rights are only accounted for in the judicial processes of the District Court. This can be defined as judicial cowardice at best, and judicial laziness at worst. It is difficult for Gaeilgeoirí to discern the exact boundaries of their language rights with respect to the legal system because of flawed judicial reasoning. This is arguably a breach of two important rule of law principles; clarity and consistency. The State’s failure to properly vindicate constitutional language rights needs to be rectified by the judiciary. As Ní Raifeartaigh J comments on, litigants seeking to have their cases heard in Irish are oftentimes considered “obstructive or insincere” – but should the State not instead be held culpable for failing to meet their explicit constitutional duties? As it stands, individuals bear the burden of the State’s constitutional failures. Where is the justice? Cá bhfuil an ceartas? Cearta Trasnacha Intersectional Rights It is often argued that there are too many practical difficulties in relation to language rights, because there are so few Irish speaking people in the country, especially against the backdrop of a legal system that derives from the British common law system. However, if the State properly undertook their duties under Article 8, and vindicated Irish language rights across the board, constitutional breaches would not manifest in the specific context of access to justice.
If the Government institutionalised bilingualism, instead of displaying tokenism and passivity towards language rights, there would be proper systems in place for Gaeilgeoirí to utilise as necessary. This issue highlights the intersectional nature of rights; they cannot be categorised or separated from each other. The denial of rights in one area will display itself as a denial of rights in another area – as can be seen here with language rights and the administration of justice. In the case of Ó Cadhla, Ní Raifeartaigh J asserted that the case dealt with a language rights issue, not a “due process” issue. But it is impossible to separate criminal process rights and the administration of justice from language rights. Ó Cadhla was claiming he had a right to be heard by a bilingual judge – surely due process rights under Article 38.1 of the Constitution come into play? This demonstrates how language rights in the administration of justice cannot be promoted without full vindication of language rights. Access to justice is not possible without access to language rights. Ní féidir rochtain ar cheartas a fháil gan rochtain ar chearta teanga. Ní féidir cearta teanga a chur chun cinn gan chearta teanga a fhíorú go hiomlán. Tá constaicí os comhair an cheartais ag Gaeilgeoirí, toisc gur theip ar an Stát ar a dhualgas bunreachtúil, agus gur mhainnigh na Cúirteanna cearta teanga a aithint go hiomlán. Tá sé dodhéanta na cearta seo a scaradh, tá siad fite fuaite ina chéile. Ar an iomlán, níl rochtain leordhóthanach ag na Gaeilgeoirí ar an gceartas. Caithfidh na Cúirteanna misneach a thaispeáint, agus caithfidh an Stát toilteanas a thaispeáint cearta teanga a chosaint. Is ansin amháin a bheidh rochtain ag na Gaeilgeoirí ar cheartas.
Photo courtesy of Matthew O’Shea, SS Law and Business
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Interview
The Eagle Interviews Professor Gerard Whyte, Trinity College Dublin By Dara Neylon-Marqués, SS Law and Political Science Gerard Whyte is a Professor and Fellow at Trinity College Dublin. He has published extensively on public interest law, law and religion, constitutional law, social welfare law and labour law. Further, he has worked alongside various not-for-profit organizations such as FLAC, PILA, the Irish Commission for Justice and Peace, Mercy Law Resource Centre, Community Law and Mediation, and is also a former member of the Irish Council of People with Disabilities. As a barrister, acting as a FLAC volunteer in Westland Row and Meath St., he was a first contact for claimants in social welfare cases such as The State (Kenny) v. Minister for Social Welfare, acting on behalf of claimants in their dealings with the Department, and identifying the cases as ones of public interest for FLAC to pursue further. Photo courtesy of Professor Gerard Whyte
What initially sparked your interest in public interest law and access to justice? I think there were two factors. The first is my working class background. That naturally sensitised me to the concerns of people from low-income communities. A classmate from school, Seamus Fagan, was recently awarded the Order of Merit by the Australian Government, because of the years he spent as an academic in Australia, trying to make third level education more accessible to people from low income and disadvantaged communities. The second factor is that I’m Catholic, and I would have been influenced by Catholic social teaching. In particular, a theological movement known as liberation theology which emerged from Latin America in the 1960s. It advocates for what is known as a ‘preferential option’ for the poor, where you analyse public policy in terms of its impact on people living on the margins of society. As a former member of the Irish Council of People with Disabilities, what would you identify as the main barrier to accessing justice for this group of people in Ireland? The first point I would make would be to say that people with disabilities encounter the same barriers to accessing justice as other people. Legal services don’t come cheap, and people can be unaware of their legal rights so it would never occur to them to go to a lawyer to resolve whatever difficulties they have. There is also the fact that people can be intimidated by the legal process. Another barrier more recent in origin is digital exclusion. If you don’t have access to computers and are not computer literate, you’ll face barriers as the legal system is increasingly going online. When you turn to focus specifically on people with disabilities, the second point I’d make is that it’s not a homogenous community. I think the barriers would vary in accordance with the disability. People who are visually impaired might need to have documents converted into braille or orally recorded. People who are members of the deaf community might need to have sign language interpreters if they’re going to talk with a solicitor. Ultimately, I’m not sure that there is a main barrier that people with disabilities might experience as
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it varies depending on the type of disability in question. In your book ‘Social Inclusion and the Legal System’ you defend the constitutional and political legitimacy of pursuing socio-economic rights through litigation due to the underlying commitment to social inclusion in our Constitution. Why do you think the courts have been so reluctant to pursue socioeconomic rights and, considering increasing individualism in society, do you think there will be any change in perspective as new generations of judges enter the judiciary? While I have argued that within the Irish Constitution there’s material that would justify a judge identifying implied socio-economic rights, I still have to accept that there are institutional limits to what judges can do. If a judge was to decide that the Constitution protected a right to shelter, the judge doesn’t have the abilities or expertise to then go and draft a policy that would vindicate that right. That’s entrusted to civil servants and politicians. In terms of why they are reluctant even to acknowledge socio-economic rights in the first place, I think the answer is probably to do with the nature of the legal world emerging from 18th-century and 19th-century liberalism where the focus is on protecting the individual from the state and guaranteeing private property. Notwithstanding all the changes that have occurred over the decades, judges are still significantly influenced by that focus on the individual. In TD v Minister for Education and Sinnott v Minister of Education, the Supreme Court endorsed the idea that the court could not get involved in identifying implied socio-economic rights because this involved a claim of public expenditure and distributive justice was to be left to politicians. However, the Supreme Court since State (Healy) v Donoghue has committed to the view that the Constitution requires the State to provide a criminal legal aid scheme, which resulted in a fivefold increase in expenditure on legal aid. At that time, no Supreme Court judge was worried that they’d made a decision that entailed distributive justice. This could be because criminal legal aid is at the core of the liberal project, which protects the individual against an oppressive state. Judges were so immersed in that understanding of the law that it never occurred to them that there could be problems with requiring the state to pay for criminal legal aid. But when asked about increasing expenditure on education systems for people with learning difficulties or social housing you come across the objections raised in Sinnott and TD. It’s hard to know if this will change. When I was an undergraduate in the 1970s, the late Professor Jim Brady taught us about the cyclical phenomenon of equity jurisprudence. His argument was that when you look historically at how the courts have developed equitable principles, they have swung back and forth between activist and conservative periods. Brady’s bottom argument was that this pendulum will always swing. So maybe that might hold out some hope that a future generation of Irish judges might be a bit more adventurous concerning things like implied socio-economic rights. In your response to Mel Cousin’s report on Public Interest Law and Litigation in Ireland, you argue that public interest law is a symptom of the failure of the political system to adequately address social exclusion. Thus, marginalisation can only be comprehensively addressed through politics. What reforms should our governments be prioritising to ensure justice for marginalised groups, especially in light of the effects of the pandemic? There are two different ways of approaching access to justice. The service model and the strategic model. The service model is more conservative and focuses on the cost of legal services as the main barrier. It addresses the problem by employing State solicitors or having the State pay for private solicitors. Essentially, it’s our civil legal aid scheme. The strategic model identifies additional problems beyond lack of income. It recognises the issue of people being unaware of their rights and also being intimidated by the world of law.
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For any of us, going out of our comfort zone to engage with people from a different background or class can be intimidating and so it can be for working class people who find themselves having to deal with lawyers. So, the strategic approach also focuses on ‘know your rights courses,’ going into schools to talk to pupils about employment law, social welfare, or criminal law, and also tries to deliver the services in a way that minimises the cultural gap between working class people and the law, for example by setting up neighbourhood Law Centres in disadvantaged communities. I think that the strategic model is much more effective so I would love it if the upcoming Government review of the civil legal aid scheme incorporates these additional elements. However, I think the review might just try to improve the service model as it still doesn’t cover most tribunal work such as employment or social welfare cases, unless you go to the High Court. These are important areas of the law for people from low-income communities. Regarding the pandemic, FLAC indicated that employment cases had spiked, outstripping the queries on family law for the first time. People were worried about being laid off or businesses closing, so certainly the pandemic had a strong impact in that area. In the aforementioned response, you also highlighted the low numbers of academics and lawyers that specialize in public interest law. What advice would you give to law students who wish to pursue a career in this area, especially given the stereotype of social justice lawyers struggling to make ends meet? I think your analysis of the situation is right, if you want to get involved in public interest law activities on a full-time basis, you do have to make financial sacrifices. Places like Mercy Law Centre and CLM have restricted budgets and cannot afford to match the salaries paid in commercial law. Also, there’s still only a limited pool of positions in the public interest law area. The silver lining in the cloud, though, is that it is not a binary choice. Increasingly, the bigger law firms are seeing a value in having a pro bono practice. PILA have connections with something like 45 legal practices in Ireland and firms like A&L Goodbody and Arthur Cox have both employed full-time pro bono officers to liaise with the voluntary community. So, it’s not the case that if you go into commercial law that you’re closing the door on public interest law.
Photo courtesy of Grace Given, SS Law and German
Photo courtesy of Matthew O’Shea, SS Law and Business
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Sex
When Justice Isn’t Justice: Questioning the appropriateness of linear justice in instances of rape and sexual violence By Kate Flood, SS Law and Business Editor’s Note: This Article discusses sexual violence, which some reads might find disturbing. Despite ever-increasing allegations of rape and sexual violence, the number of prosecutions and convictions are plummeting. This reality comes against a backdrop of decades of policy reform, constant calls from campaigners and academics, and commitments from governments to secure justice for victims and survivors of sexual violence. Varsity reports that in the UK there are three convictions for every 100 allegations, this is not indicative of justice; rather, in the words of Dame Vera Baird, Victim’s Commissioner for England, it is tantamount to the “decriminalisation of rape.” It is contended that the justice pursued under the current system is not only inappropriate, but that it misinterprets ‘justice’ as understood and desired by the victim. Instead, a more nuanced approach should be adopted, to reflect the complex experiences and needs of victims and survivors. Victims and the Adversarial System: Ireland, the UK, and the US employ adversarial legal systems, which are intended to secure justice for the accused, and not for the victim. This sets the tone for the way in which cases of rape and sexual violence are dealt with by the police, the court, and ultimately, by society at large. According to Daly and Bouhours, less than 20 per cent of survivors report their experiences to the police and that only 8 per cent of those cases ever advance to trial. Judith Herman once surmised, “if one set out intentionally to design a system for provoking symptoms of traumatic stress it would look very much like a court of law.” Under an adversarial system, it is the sole objective of the defence to cast doubt on the case of the prosecution. This poses particular problems in instances of rape and sexual violence, as the testimony of the victim may be the only evidence and so their word will be aggressively attacked and questioned by the defence. Such cross-examination can be re-traumatising, as accusations of lies and exaggeration are thrown at survivors, and they are forced to relive the terror and helplessness endured during the original attack. Victims are expected to contend with this while also dealing with the mental consequences of having experienced sexual violence. Hence, their psychological trauma stands to be exacerbated. The possible manifestations of this trauma, such as blocking out memories and feelings being employed against victims by the defence in an attempt to undermine the reliability of their testimony. In this way, survivors are forced to endure a “second rape” as they battle to satisfy the burden of proof in a system that focuses on protecting the interests of their attacker. There are, of course, mechanisms that could be introduced in order to improve the experience of victims progressing through the adversarial system. Survivors could be given the option of receiving psychological support, to try and minimise the traumatic implications of the criminal-justice process. The Dublin Rape Crisis Centre advocates for the entitlement to separate legal representation throughout the process of reporting and to advance an allegation of rape or sexual violence. It is thought that this would ensure that victims are treated compassionately by the police, and that they receive effective and beneficial medical care. Additionally, courts and juries could be educated as to the many psychological consequences of sexual violence, and the ways in
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which they can play into the strategies pursued by defence teams during cross-examination. Measures such as these would work to vindicate the right of victims within the adversarial process; however, could they possibly ensure meaningful justice for survivors? A Linear Perception of Justice The reality is that reforms, such as those outlined above, simply may not be enough. Reforming the adversarial system for cases of rape and sexual violence would still subject victims to a system that inherently de-emphasises victims and survivors. This de-emphasis is unavoidable as the system advances a linear perception of justice, wherein there is a process with a beginning and a definitive end. Moreover, it is generally understood that the success of such a process can be denoted by positive, punitive outcomes. In this way, justice is presented as something which McGlynn and Westmarland describe as being “dichotomous: you either get it or you don’t.” Furthermore, this approach to justice is representative of what societal and policy discourse deems to be ‘justice’ in cases of sexual violence. As Dianne Martin notes, this presupposes that justice for victims of such egregious crimes can be secured by equating “recognition of harm with length of prison sentence.” This line of thinking advances the notion that there exists, what Asher Flynn refers to as a “recognisable rape narrative” which can be applied to any and every case of sexual violence. Effectively, there is no meaningful interrogation into the real needs, and justice-interests of victims, which in reality can vary from case to case. The issue is that alternatives to the status quo are often dismissed before they can be duly considered. So embedded is linear justice in society’s understanding of what justice is and ought to be, that it dominates policy debate, and drowns out calls for a more innovative and nuanced approach. Moving Beyond Linear Justice Nonetheless, there have been many attempts to shift and recentre the discourse on victims, and to apprehend justice as something which must be seen to be done from their perspective. Rather than being a static, ‘onesize-fits-all’ concept, most victims of sexual violence have a very fluid and variable understanding of what justice is. In this way, their idea of justice, and what it should entail, is often quite apart from the perception of justice advanced by the criminal system. Clare McGlynn and Nicole Westmarland, in advancing the case for what they term ‘Kaleidoscopic Justice,’ recognise this disjunction. They suggest that by better understanding the victim’s perspective on justice, and embedding the idea of kaleidoscopic justice, we, as a society can begin to properly and adequately address the lack of justice for victims and survivors of sexual violence. Their work sees justice “as an ever evolving, nuanced and lived experience,” which emerges in different themes: consequences, recognition, dignity, voice, prevention and connectedness. They suggest that justice be taken for the complex, changing and ongoing concept that it is for survivors. As such, a given case of rape of sexual violence would be approached and dealt with based on the circumstances, experiences and needs of the victim. This could involve incorporating restorative justice and/or ensuring that the victim has access to perpetual support, be it emotional, psychological or financial. Moreover, where appropriate, the education or rehabilitation of the accused could be pursued, rather than, or in tandem with, conviction. In this way, each victim would be seen as an individual, with their own unique and complex set of circumstances; as someone who has a definition of justice which may or may not align with that of another victim.
Kaleidoscopic justice moves away from the notion that justice can always be achieved through the imposition of a prison sentence. Adopting this approach to cases of rape and sexual violence would enable society to treat victims with the care, dignity and respect that they deserve.
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Conclusion The idea of justice currently attributed to cases of rape and sexual violence is wholly inadequate, and operates to re-traumatise victims rather than restore their sense of agency, fairness, and justice. In order to remedy this, and to better care for such victims, we need to stop viewing justice as something that happens to an offender in court. Instead, we have to appreciate it for the complex and nuanced concept that it is from the perspective of survivors. This would involve moving beyond linear justice, and learning to accept that a conviction for rape is not a success if it came about through the devastation and re-traumatisation of the victim.
Access to Justice; Adolescence, Revenge Porn and a Failure to Regulate Underage Sexting. By Abigayle Pigott-Mason, LL.M. Candidate, International Law A collective sigh of relief could be felt by the general public as the the Harassment, Harmful Communications and Related Offences Act 2020 came into force and offered a legal refuge for individuals impacted by the non-consensual distribution of their private and personal explicit images in an act colloquially known as ‘Revenge Porn’ or ‘Image Based Sexual Abuse’ (ISBA). However, the 2020 Act failed to regulate gender and sexual-based cyber crimes against those who can be understood to be Ireland’s most vulnerable victims. Under Section 5 (1) and (2) of the Child Trafficking and Pornography Act, 1998 there is a strict prohibition on the production and distribution of child pornography, including self-produced images. The purpose of this regulation is an obvious one and its necessity of creating airtight laws against child sexual abuse goes without saying, however, as we see a significant trend in the sharing of explicit images (sexting) between minors, the need for further regulation becomes more apparent. Employing current legislation means that the exchanging of these explicit images between minors is a criminal offense which could potentially see underaged individuals, who self-produced and distributed child pornography, be prosecuted as sex offenders. The archaic and inflexible nature of child pornography law implies a potentially devastating impact for children and teenagers who face the widespread distribution or ‘leaking’ of their self-produced explicit images. This barrier creates difficulties for underage individuals to report incidences of revenge porn. Without specific procedure and legislation, approaches to this relatively commonplace issue vary from Garda Station to Garda Station. This opens the door for potential abuses of power and an overall inability to access justice for sexual and gender based crimes against minors. The criminalisation of minors sharing their own explicit images was an inadvertent consequence of the legislation put in place by the Child Trafficking and Pornography Act, 1998. Legislators at the time could not have predicted or comprehended the exponential growth of the internet and online messaging platforms. However, the consequences are far from minute. Recent research from the Cyber Civil Rights Initiative found that a large percentage of Image Based Sexual Abuse victims suffered from and were exposed to sexual harassment, social isolation, and emotional distress. Therefore, without significant and tangible legal avenues available to adolescents, they are forced to address the consequences and impact of IBSA alone.
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The issue of self-produced child pornography is by no means a binary or easily-solved problem. However, attempts to tackle this issue have occurred through the incorporation of human rights principles and the adaptation of principles of proportionality. Ireland’s ratification of the UN’s Convention on the Rights of the Child has affirmed a right to freedom of expression for children under Article 13. Furthermore, Article 8 of the European Charter of Human Rights provides protection for the integrity of the person, which has been held to extend unto sexual identity. Of course, it is not beyond reasonable doubt that these rights can be limited, as was found in G v United Kingdom whereby it was held that the limitations on sexual expression and identity are a necessity so as to “[protect children] against premature sexual activity, exploitation and abuse.” A case recently heard in the Canadian Supreme court may offer some guidance and direction for this unregulated issue. R v Sharpe, the facts of which bear little relevance to this topic, found that the prohibition of self-produced images by minors “trenches heavily on freedom of expression while adding little to the protection the law provides children.” Therefore, images depicting lawful sexual activity (parties must be over age of consent) which were held privately and consensually were permissible. The boundaries of this were also defined clearly as the court emphasized that anything beyond private viewing would incur the full force of criminal law. Although not perfect, this judgement provided somewhat of an avenue to protect Canadian teenagers who consensually and privately share explicit images. It is important to clarify, for the nature of this argument, that this discussion only encompasses the consensual sharing of explicit images between minors and the advocacy for proper provions which will promote access to justice in case of any subsequent image based sexual abuse they may face. Any incidences beyond the sharing of explicit images between minors falls into the realms of coercion, grooming, exploitation, and paedophilia. It is held that despite our discomfort with underage sexual activity and our desire to protect our children and teenagers from any form of sexual explotation and abuse, this issue is not one which will go away on its own or through the prosecution of minors under the Child Trafficking and Pornography Act for the self-production of child pornography. Many individuals in the current generation can tell firsthand accounts of the devastating effect image based sexual abuse has had on themselves or their classmates and friends. Those affected may have faced social isolation and genuine emotional stress, having to switch schools. To cower away from this topic creates an unpredictable nature around this area of law which prevents underage victims of image based sexual violence from coming forward and accessing justice. Procedural approaches and guidelines to tackle this issue must be introduced in Garda Stations and schools across the country. Failing to regulate this area of law because of its contentious and uncomfortable nature is failing to protect our children.
Photo courtesy of Grace Given, SS Law and German
Photo courtesy of Matthew O’Shea, SS Law and Business
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It’s Britney *****! The Pop Princess, The Global Icon…The Prisoner Who Had No Access to Justice for 13 Years! By Luke Gibbons, LL.B (Dub.) (aur.num.), BCL (Oxon) (Dist.) (Hon. Sch.), PhD Candidate (Dub.) Imagine being 39 years old, living with no personal freedom, zero control over your everyday life, someone else making important decisions about your healthcare, your money, the amount of work you do, with no capacity” to hire your own lawyer and gain access to the courts, no access to justice! This is the life popstar Britney Spears has lived since 2008 when she was placed involuntarily under a court ordered ‘temporary’ conservatorship of both her estate and her person. The ‘temporary’ conservatorship lasted 13 years until November 12, 2021 when Superior Court Judge Brenda Penny finally terminated the egregious legal agreement. However, in this piece this author questions why this was allowed to happen in 21st century America - how was a global superstar capable of earning millions per annum deemed incapable of living her life? The grave answer is that the legal tool of a conservatorship, often appropriate in many circumstances of actual incapacity, was in this case abused by the conservators for financial gain. This resulted in Spears having no capacity to hire her own legal representation and no access to justice for 13 years. She was arguably the most visible prisoner in the entire world. A Conservatorship (a) What is it? As Aaron Larson outlines, under US law a conservatorship is the appointment of a guardian or a protector by a judge to manage the financial affairs and/or the daily life of another person due to old age, physical or mental limitations. For adults, the guardian is termed a conservator, and the person under the conservatorship is called a conservatee. Conservatorships can be “of the person,” where the conservator has control over the conservatee’s daily activities such as healthcare and living arrangements. Alternatively, the conservator may be “of the estate” where financial decisions are controlled. In Spears’ case, she was placed under a conservatorship of both her person and her estate. In practice, this meant that she was deemed incapable of making any decisions relating to her personal life and managing her own finances effectively. (b) Why Britney’s Conservatorship Never Made Sense Critically, as Spears’ attorney Matthew Rosengart outlines, in almost all cases a conservatee does not and cannot work, support themselves nor a family. Moreover, in every case a reason for instating the conservatorship must be given. Court documents revealed that one of the primary reasons given for Spears’ conservatorship was early onset dementia. However, the year before Spears’ conservatorship was instated she released the most critically-acclaimed record of her career, ‘Blackout.’ Only a year after the conservatorship started she released another album, ‘Circus’ and embarked on the Circus World Tour, the fifth highest grossing tour of 2009 grossing $131.8 million. This is some achievement for a person deemed incapable of deciding if she needed to visit the GP, what friends she is allowed to have or whether she can drive her own car. It is difficult to see how early onset dementia was deemed acceptable as a basis for the conservatorship when the Circus Tour required Britney to remember both detailed lyrics and intricate dance routines. Moreover, the gross earnings of the tour clearly demonstrate that Britney was a person quite capable of earning enough money to support herself and her family.
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From a reasonable person’s perspective, Spears’ conservatorship was clearly flawed from as early as one year into the arrangement. While initially after her very public breakdown in 2007 some intervention into Spears’ life may have been merited, why was a ‘temporary’ arrangement designed to get her back on her feet allowed to operate for 13 years? How did a conservatorship metamorphose into what now public documents have called a “hybrid business model.” Herein, it is argued that the access to justice issue is at the heart of allowing this to occur. The Access to Justice Issue In Specie : A Good Lawyer Can Make All the Difference At the core of Spears’ conservatorship arrangement was the fact she was repeatedly deemed incapable and lacking capacity to hire a lawyer of her own choosing. Instead, the court appointed an attorney to act on her behalf, using a system that is generally reserved for those who cannot afford their own. The stipulations around her even speaking to other counsel to seek legal advice were so strict that, while held involuntarily in a mental health facility in 2020 as court documents reveal, she had to go to the lengths of asking a lawyer to “dress up as a plumber” so she could see him. This creates many access to justice issues as now outlined. (a) Incapacity to Hire Effective Counsel A more experienced lawyer could have represented Spears’ interests more effectively if she only had freedom to choose her own. This can be noted as her new counsel, which she was allowed to select after the court granted her request after 13 years, has effectively ended the conservatorship in 6 months, whereas her court appointed attorney never came close. Moreover, the insularity of the conservatorship meant that no meaningful review took place with Spears actually present in the courtroom. This allowed Spears, as she has testified under oath, to “not know she could petition to end the conservatorship.” Her court appointed attorney never made this clear. This may be a general comment on the difference between an expensive celebrity attorney and one who was not as effective, largely due to the systemic nature of legal aid being under-resourced. However, the point to be made here is that Spears, by being controlled under the conservatorship, was not given the effective legal advice and consequential access to justice that she could readily afford. By not being provided with the information that she could petition to end the conservatorship until many years into this “temporary” arrangement, not only did her conservators financially profit from the legal arrangement, but her voice never made it to the courtroom. Her views were not considered. She was seen as a commodity, a commercial entity, a powerhouse that paid her staffs’ wages. This defies the legal maxim that legal systems should ensure Audi Alterum Partum (let the other side be heard). (b) The Broader Issue Impacting Other Lay Litigants Consequently, the second access to justice issue here is as the court used a system to appoint Spears an attorney which is reserved for those who don’t have the resources to hire their own, potentially many individuals were unable to access the courts, as one less lawyer was available. Not only does Spears’ case show that a conservatorship can be abused to effectively silence one of the most powerful celebrities in the world, but her case also demonstrates that resources can greatly assist in achieving access to effective justice in that her new lawyer has been far more impactful. This compounds the fact that a socio-economic divide exists in litigation and in many instances money and resources are used to help win cases. The Need for Public Action to Allow Access to Justice Another element of Spears’ case which is generalisable is how a public movement and public debate can spur social and legal change. The #FreeBritney campaign, now termed a “Human Rights Movement” by Spears herself, is credited with being an impetus for the court to grant Britney the right to hire her own lawyer. The fact this movement was garnering traction in the worldwide media no doubt put pressure on the judiciary in California to allow Spears effective access to the courts. This demonstrates just how key public discourse is to
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effecting change and mobilising the power of the people.
However, while Spears’ case garnered huge support from her fans, one must question how many of the other approximately 1.3 million guardianship/conservatorships in the US are abusive. It is possible that individuals are not aware of their rights to petition to end these legal arrangements. If this information can be hidden from one of the most legendary superstars in the world, a lay person in the US may have zero chance of gaining the access to the courts that Spears did. This is why proposals to review all active conservatorships in the US must be favoured. On one view a conservatorship, when abused, may act as a court-sanctioned institutional model which allows for the evasion of basic human rights. Conclusion While the #FreeBritney movement and the ability to hire an experienced lawyer assisted Spears to gain the access to the justice needed to terminate her conservatorship; this cannot be the end of this movement. As stated, 1.3 million conservatorship cases are active at present in the US, many may be just as, if not more abusive than what the court documents reveal in Spears’ case. A clearly falsifiable diagnosis of early onset dementia or any other mental health issue cannot be the basis for imposition of a conservatorship without rigorous review. Spears’ case has highlighted that the insularity of these conservatorship arrangements can lead to these seemingly well-intentioned legal relationships being abused. Increasing the levels of accessibility to justice by allowing conservatees to attend hearings, ensuring they have all the information available to them about the conservatorship, and having the ability to hire their own legal counsel, are all elements which to some degree can evade this legal tool being abused.
Photo courtesy of Ringo Chiu, AP
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Ireland’s Inadequate Access to Justice: The Discrepancy between Common and Civil Law Systems By Grace Given, SS Law and German At the Access to Justice Conference 2021, former Chief Justice Frank Clarke made a variety of worrying observations about Ireland’s position near the bottom of the international league table with regard to the investment in the justice system. In fact, in comparison with civil law jurisdictions, Ireland is notably lagging behind when it comes to the allocation of taxpayers’ money in this regard. The costs associated with bringing a case to trial in civil law systems are generally fixed and charged in accordance with legislation. In Germany for example, lawyers’ fees are charged either in accordance with the Rechtsanwaltsvergütungsgesetz (Lawyers’ Remuneration Act), or based on fee agreements which must have regard to provisions set out in the Bundesrechtsanwaltsordnung (Federal Lawyers Code). In non-criminal cases, lawyers are not remunerated for the time which they spend on a case, but are paid a fee in accordance with statute, which is evaluated based on the value of the claim. Because low income litigants tend to have lower value claims, many often benefit from this sliding scale fee system. The Rechtsanwaltsvergütungsgesetz does not prevent a party from signing a fee agreement that could lead to higher fees; it does, however, restrict the fees to be reimbursed by the losing party. In addition, fee ranges with statutory maximum and minimum amounts apply in a number of special fields such as matters of social law. In contrast to this, Ireland has been described by ‘The Lawyer,’ a specialist legal publication, as “the least transparent jurisdiction in Europe’’ when it comes to collecting data regarding legal fees. Legal costs in Ireland are generally discretionary in nature and are often prohibitively expensive as a result. The former Chief Justice put forward another line of reasoning for Ireland’s precarious position: “It is fair to say that there is a significant shift, in a common law system, towards work being done by parties and their lawyers (if they have them) as opposed to being done by the court and its researchers. This significant difference has the effect of transferring cost from the taxpayer to the parties to litigation. It is at least part of the explanation as to why the Irish taxpayer spends significantly less on our justice system compared with most continental countries while the Irish litigant spends more.” It is also worth noting that, in a tradition derived from Roman law (iura novit curia: da mihi factum, dabo tibi ius), litigants in Germany need not discuss points of law, but must only present the facts of the case to the court. This means that German lawyers spend significantly less time on researching points of law than their Irish counterparts. During the 2008 Financial Crisis, the high cost of legal services in Ireland was repeatedly criticised. In response to this, barristers and solicitors in the Criminal Courts had their fees slashed, and bodies like the State Claims Agency sought better value for money by inviting tenders for legal services. Under the Financial Emergency Measures in Public Interests legislation, pay-cuts ranged from 28.5 percent to 69 per cent. This month, over 100 Irish criminal solicitors and barristers have signed a petition addressed to Paolo Gentiloni, the European Commissioner for the Economy, in an attempt to reverse these cuts which were referred to as ‘emergency measures’ at the time. By way of comparison, fee charges by lawyers for private work in the civil courts have been on the rise. Ireland remains an expensive place to litigate, with the price of legal services going up rather than down, according to the National Competitiveness Council.
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This, of course, calls into question the threat to the constitutionally-guaranteed right to equality before the law and access to the courts. The disparity in investment, coupled with the soaring cost of legal representation, manifests itself in an incentive for parties to settle disputes before these costs become insurmountable. This can only be described as a verifiable barrier to justice and an example of blatant inequality.
In situations where one party to a dispute is significantly financially disadvantaged, they may choose to settle for a sum that is not reflective of the quantum of damages to which they might otherwise be entitled. Unfortunately, and as is often the case, this disproportionately affects minorities and marginalised groups and contributes to systemic inequality in the justice system. The Legal Aid Board is struggling to deal with the ever-increasing strain on its resources. The pandemic has led to a massive increase in the number of people relying on free legal aid. Community Law and Mediation recently noted that demand for their services increased by 33 percent at the peak of the pandemic. To further compound this issue, many potential litigants in Ireland are caught in a “poverty trap,” a term used by the former Chief Justice to describe the predicament of people who cannot fund litigation but do not qualify for any civil legal aid schemes. Germany once again provides an interesting approach to such cases. Legal aid in Germany can be granted as a loan in accordance with Section 120 of the Zivilprozessordnung (Code of Civil Procedure). Repayments are calculated based on the litigant’s income and assets and can be waived in the case of low-income litigants in accordance with Section 115 of the Zivilprozessordnung. The courts begin by calculating the gross monthly income of the litigant. They then deduct certain amounts from this sum depending on the litigant’s personal circumstances - for example, dependants, expenditure on rent, taxes, etc. The remainder thereafter is the income to be used for the granting of legal aid - with or without the obligation to pay in installments. • • •
If this calculation results in a negative amount or a remainder of less than €20 per month, all legal aid costs will be waived. If the remaining income is greater than €20 but less than €600, the amount will be halved. This value is then the monthly installment to be paid. For example, a litigant with an income of €150 after these deductions must repay a total of €75 per month. If the remaining income exceeds €600, the repayment rate will be set at €300 plus the part of the income that exceeds €600. For example, a litigant with an income of €650 after these deductions must repay €350 per month.
A maximum of 48 monthly installments must be paid. Legal aid is available in proceedings relating to civil disputes, in non-contentious proceedings and in proceedings before an Arbeitsgericht (labour court), Verwaltungsgericht (administrative court), Sozialgericht (social court) and Finanzgericht (fiscal court). That system works as a verifiable ‘catch-all,’ providing free legal aid to those who cannot afford to contribute at all, while also ensuring those caught in the “poverty trap” can access justice. Ireland’s policy makers and legislators should examine whether a similar system could work in this jurisdiction. A broader solution put forward by former Chief Justice Clarke and former President of the High Court Peter Kelly, is the introduction of fee caps or fixed fee arrangements. In February of this year, Justice Minister Helen McEntee endorsed this approach and announced that she intended to introduce fee caps to provide certainty to those availing of legal services. Minister McEntee said that recommendations of Kelly’s report entitled ‘Review of the Administration of Civil Justice’ on reform of the civil courts would be examined in an attempt to Photo courtesy of Grace Given, SS Law and German
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draw up scales and rates. She continued; “Not knowing how much legal proceedings could ultimately cost currently acts as a barrier to accessing justice and is damaging to our economy and competitiveness.” Whether or not such limits will be implemented remains to be seen, but it might be worth looking to our European civil law counterparts for solutions to this problem. Irish policy makers and legislators would do well to study the manner in which Germany and other civil law jurisdictions monitor and control the cost of legal representation, even if the implementation of such controls would require extensive fee regulation. In any case, what is clear is that the current situation with regard to the cost of legal representation in this jurisdiction is untenable, prevents a barrier to justice, and is in dire need of reform.
Polar Opposite Opinions: The Polish Challenge to the EU’s Legal Order By Ted Halligan, SS Law and Political Science The primacy of European Union Law is one of the cornerstones of the institution, streamlining the processes of the European Member States in a way that allows it to function more efficiently than it had before 1964. Initially set out in the landmark case Costa v ENEL, it was decided that EU law takes precedence over all national law, including constitutions. However, this has come under severe strain from a judgement of the Polish Constitutional Tribunal rejecting the primacy of EU law. This article aims to explore primacy in the European Union from its foundations to how the concept has often brought the EU into conflict with National Constitutional Courts; it will also look at how the Polish judgment differs from previous occasions where the concept of primacy has caused controversy. The facts of the foundational case setting out primacy, Costa v ENEL, are as follows; Mr Costa was an Italian man who owned shares in the electricity company Edison Volta. This company was nationalised by the Italian government, forming ENEL. Mr Costa argued that this violated his rights under the Italian Constitution and the Treaty of Rome. The case was first referred the Italian Constitutional Court and subsequently to the European Court of Justice. The Italian court ruled that, as the nationalisation was authorised under a law passed after the Treaty of Rome, there was no violation of Mr Costa’s rights. Under standard rules of statutory interpretation, a law passed more recently is deemed to have precedence over an older statute where there is a conflict. The Court of Justice differed in its interpretation, holding in its judgement that “the treaty instituting the [EU] has created its own order which was integrated with the national order of the member states.” Continuing, the Court stated that through creating the European Community, the Member States had restricted their sovereign rights to create a new body of law, and that due to the nature of the international aspect of the agreement it would not be fair on Member States to have to accept unilateral decisions made by others. The court then concluded with the following; “It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.” Thus, the Court of Justice effectively reversed the decision of the Italian Constitutional Court.
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The concept of primacy is one of the fundamental aspects of EU law, although it must be said that it is not stated explicitly in any of the Treaties. As so often, the Court here is reading between the lines to make the treaty system function effectively. Without this assumption, the pursuit of EU policies would become unworkable as there would not be uniform application of law across the Union. Whether or not the EU had the power to do this is still a matter of great controversy even today, nearly 60 years later, with many Eurosceptics claiming this was a power grab by the Court. There was a serious attempt to bring primacy explicitly into the treaty system by establishing a Constitution for Europe. However, it must be noted that this Treaty failed to be ratified as it was rejected by referendum by voters in France and the Netherlands. It was agreed after this to abandon the attempt to create a European Constitution; instead, leaders opted to create the Lisbon Treaty. Although both Treaties were inherently similar, one notable difference between the European Constitution and the Lisbon Treaty was the exclusion of the concept of primacy in the Lisbon Treaty. This means that primacy, although vital to the functioning of the Union, remains based only on Court judgements. In Ireland, EU law is immunised from Constitutional challenge through Article 29.4.6°. This Article does two things; it provides that the Constitution cannot be used to invalidate any acts of the Irish Government that are necessitated by our membership of the European Union, and that the Constitution cannot be used as a proviso to prevent laws, acts, or measures of European Institutions from having the full force of law in the state. This effectively means that the primacy of EU law is explicitly recognised in the Irish Constitution. This is not the case in every Member State, meaning that primacy has caused the Court of Justice and various national constitutional courts to butt heads. A few examples of this are laid out below. A first notable example of this happening can be found in the conflict between the Danish Supreme Court and the Court of Justice in Ajos v Estate of Rasmussen. This case focuses on a dispute about pensions and severance packages. Under Danish law, when an employee is made redundant, a lump sum must be paid; however, this does not apply if a redundant employee will receive a state pension upon the termination of the employment relationship. The Court of Justice found this was unlawful age discrimination contrary to EU law. It also held that national law must be interpreted to conform with EU law, in this case referring to the Equality Framework Directive. The Danish Supreme Court responded to this in the case Ajos v The Estate Left by A. It held that the EU court could not reinterpret Danish law and national legislation could not be disapplied based on a general principle of EU law. However, according to Sim Haket writing in the Review of European Administrative Law, this should not be viewed as a direct challenge to primacy as the burden is placed on national courts to interpret national law in light of EU law. There is no real way of determining in the abstract if a national court has gone far enough in interpreting national law in the light of EU law. Therefore, on a technicality, this sidesteps the question of whether this is a challenge to primacy. A more serious example of primacy being challenged comes from the German Constitutional Court. Regarding the Constitutional Complaints 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15 and 2 BvR 980/16 the Court found that the Court of Justice had acted outside of its powers in Weiss and Others, meaning the decision did not apply in Germany. The Weiss case arose as an action against German institutions concerning the European Central Bank (ECB) programme to purchase assets - the Public Sector Purchase Programme. The German Court raised doubts over the compatibility of the ECB decisions with the Treaty on European Union’s prohibition on monetary and finance powers, and the principle of conferred powers. It found that the judgement of the Court of Justice lacked the proper reasoning to justify the programme. This being said, the Constitutional Court’s objections are based on what it sees as legal and procedural flaws from the Court of Justice; it did not directly challenge and attempt to invalidate the ECB programme. This is still a violation of the primacy of EU law. It is essential to note that the decision did not challenge the principle of primacy itself as the German court was not analysing the compatibility of the primacy of EU law with the German Constitution.
Photo courtesy of Mark Kavanagh, JS Business & Polish
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This then brings us to recent developments in Poland. Poland is currently under the Leadership of the Prawo i Sprawiedliwość (PiS, Law and Justice Party) and their junior coalition partners; this is a Eurosceptic, rightwing, populist Government. One of its significant policies in recent years has been judicial reform. These reforms have given politicians the power to fine and fire judges whose decisions they consider harmful. This defies traditional liberal democratic ideas of judicial independence, namely the idea that judges should, to the greatest extent possible, be left free of political influence and be able to act independently. These reforms were criticised heavily by the EU and human rights groups. Another part of the PiS judicial reforms allowed for the appointment of judges to the Polish Constitutional Tribunal directly by the Polish legislature, the Sjem. Again, this significantly weakened the judicial independence of the Polish judicial system by making judges politically influenceable. The Polish Government looked to challenge various aspects of the European Treaties to see if they were compatible with the Polish Constitution, primacy being among the legal concepts challenged. The Polish Constitutional Tribunal reached a decision in Ocena zgodności z Konstytucją RP wybranych przepisów Traktatu o Unii Europejskiej, holding that Polish Law sits above EU law. This is a direct violation of a fundamental aspect of EU law. This is a much more severe breach of EU law than either the Danish or German decisions. Both of those decisions, although showing that those national courts may in certain circumstances be willing to dispense with primacy, do not violate the concept as severely as Poland has. In the Danish case, it is arguable that primacy was not violated on a technicality, and in the German case primacy was violated on a narrow ground - the concept itself was not adjudicated on nor annulled. This is not the case in Poland, where primacy was comprehensively rejected. Particularly after the German decision, it was argued by many commentators that it may give the EU’s more authoritarian states, including Hungary and Poland, carte blanche to challenge EU law more directly. It appears that these fears were well-founded. As a consequence of the Tribunal’s decision, the Commission is now withholding EU funding from Poland and fining the Polish government €1 million a day until Poland agrees to reverse their decision on primacy. As the EU does not possess any further disciplinary power above financial punishment, it is currently unclear how this rule of law crisis will be resolved.
One of the major takeaways from this crisis is that it was a mistake of the Member States not to include a clause in the Treaties forcing states to acknowledge the primacy of EU law. If all Member States approached EU Law just as Ireland has in the Irish Constitution, the crisis we are currently facing would not have occurred. It is essential to recognise, however, that there would be major political difficulties in doing this. I would seriously doubt that many Irish people know, or would be happy with, the idea that EU law sits above the Irish Constitution; I feel many would see this as a huge violation of national sovereignty. One of the main reasons for the primacy clause being excluded from the Lisbon Treaty was to avoid facing that political question; however, all that has happened through primacy’s exclusion from the treaties is that a hypothetical political crisis has been replaced with an actual rule of law crisis. The EU finds itself in a serious bind, of which there is no immediately apparent exit.
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