The Eagle: Trinity College Law Gazette Volume 10 Issue 1

Volume 10 Issue 1 November 2023

Table of Contents 3

Letter from the Editor by Doireann Minford

Articles Article 41.2 – The Need for “Care” Beyond the Home by Annie Egan Reproductive Autonomy: a crucial step on the path to gender equality by Louise Cullen Redefining the Family: The Long Shadow of Pope Pius XI and Article 41.3 by Anna Clarke and Eoin Ryan Isolated Innovation: The shortcomings of British AI Regulation by Kyle Egan The Inadequate Assumptions of Contract Law Doctrine in the Online Age

by Simon Sun Striking the ‘Right Balance’ Between Credibility, Effectiveness, and Political Feasibility when Designing Multilateral Environmental Agreements (MEAs) by Luke Gibbons The Yemeni Struggle for Justice by Elena Hernandez The Perjury Act 2021- Two Years Later by Lawrence Valentine Murray The Irish Government is Failing in its Duty to Defend the Nation by Fiachra Mooney Assessing the Charities (Amendment) Bill 2022 by Aoife Doheny The Dilemmas and Difficulties of the Concept of Parent Alienation in Irish Family Law by Isobel Houlihan Post-Pandemic Prisons: Irish Penal Reform Regressing? by Jacob Hudson

5 8 10 13 15 18 21 25 26 28 32 34

Photo courtesy of Emma Bowie, L.L.B. Graduand

1 | The Eagle Volume 10 Issue 1

Photo courtesy of Alex Coghlan, SS Law and Political Science

Senior Editorial Board Editor in Chief: Doireann Minford Deputy Editor: Jacob Hudson Copy Editor: Ciara Hogan Public Relations Officer: Amy Cox

Junior Editorial Board Alex Coghlan Aoife Doheny Arielle Hillock Chloé Asconi-Feldman David O’Sullivan Elena Hernandez Jenny Salmon John Lonergan Kate McGinnity Matthew Keeley Michael Gormley Nazar El-Basheir Nora Collins Oisín Moore Sarah Jones Síofra O’Donoghue Winta Solomon

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

Design and Layout: Doireann Minford Cover Image: Emma Bowie

2 | The Eagle Volume 10 Issue 1

Letter from the Editor Lett

A Chairde, I am delighted to launch Volume 10 of The Eagle with our first issue. This year, like the previous 9, we intend to promote accessible discourse surrounding issues of law and its impact on current affairs. Issue 1 has a broad range of articles focusing on topics such as the current humanitarian crisis in Yemen and the concept of parental alienation in the Irish courts.

Finally, I would like to highlight the diligent work of the Junior Editorial Board on this issue. Their insightful edits helped to hone 12 wonderful articles in order to prepare them for publishing. The work of Jacob, Ciara, and Amy in running our blog, social media, and providing guidance and assistance cannot go unmentioned.

What stood out to me most about this issue was the broad range of articles we received that focused on Irish law. Those interested in the law in Ireland are living in exciting times given the proposed referendum on Article 41.2 as well as the recent Article 26 referral by the Irish President. We were delighted to collaborate with Trinity FLAC in running an article competition focusing on Article 41.2 and its potential reform. Submissions showed both the regrettable impact of the Article on a woman’s place in the State, as well as the difficulties surrounding how it can be re-worded. Ultimately, I hope everyone has the opportunity to read the articles on this issue and become further informed prior to the proposed referendum.

The Eagle would not exist without our terrific contributors. At present, our mission of providing accessible information to those coming from both legal and non-legal backgrounds has never been more relevant. Unfortunately, we are living in an era where conflict has erupted around the globe. By writing for both our issues and our blog, you have the opportunity to shed light on these events, encouraging all readers to be informed and investigate ways in which they can help. It is my hope that the social and political discourse generated in both this issue and future issues encourages readers to be passionate and take charge of leading social change.

I wish to thank our title sponsor Maples and Calder (Ireland) LLP, especially Ciara O’Brien, their HR Business Partner, for their generous financial support in funding the gazette. As well as that, we would like to to thank our additional sponsor, Cleary Gottlieb, for their financial contribution to this issue.

Deputy Editor: Jacob Hudson

With that, I present to you Issue 1. I hope that you enjoy it, learn something, and perhaps consider contributing in the future. I cannot tell you how excited I am for the coming year and all of what we have planned, and I hope that you can follow in this journey with us.

Le gach dea-ghuí, Doireann Minford Editor-in-Chief The Eagle: Trinity College

Copy Editor: Ciara Hogan

PRO: Amy Cox

3 | The Eagle Volume 10 Issue 1

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Article 41

Winner of The Eagle and FLAC’s Article Competition “Gender Equality in Ireland - Article 41.2 and Beyond” Article 41.2 – The Need for “Care” Beyond the Home

By Annie Egan, JS Law In a progressive Irish society, we would anticipate that gender equality is near conclusive. Therefore it is disconcerting that Article 41.2, which recognises the role of women in the home, still holds a place within our Constitution. As societies advance, collective values and ideologies inevitably evolve. The Irish Constitution, a keystone of Irish society, is no exception to this. In fact, it has been recognised that Bunreacht na hÉireann must serve as a living, breathing document which adapts to shifting societal values and cultural normativity. Article 41.2, an antiquated relic of the past, casts doubt on the notion that true equality has been fully realised between genders. While great advances have been made in attempt to achieve such equality, there is more to be accomplished, particularly with regard to the unpaid work of carers.

This piece will utilise feminist critique methods in examining Article 41.2 by navigating the historical and geographical contexts in which it was crafted before, exploring the legal impact of Article 41.2, the value society places on care will be scrutinised and the implementation of a universally accessible childcare infrastructure will be advocated for.

Historical and Geographical Considerations Article 41.2 warrants a feminist critique within its historical and geographical contexts in order to provide context for understanding and exposing the gender stereotypes contained within the law, as well as their impact on sources of law such as the Free State Constitution, Bunracht na Éireann and subsequent legislation.

Before the enactment of the 1937 Constitution, the 1922 Constitution of the Irish Free State seemingly granted women citizenship “without distinction of sex”.

However, Hogan argues that it primarily addressed citizenship rights rather than gender equality.

Subsequent legislation, such as the exclusion of women from jury service under the Juries Act 1927, exemplified a gap between constitutional principles and legal restrictions on women's public roles.

World War I challenged gender norms as many women took on what were traditionally deemed to be “men's roles” while they served in the War, demonstrating the potential for a more inclusive and egalitarian society. However, post-war male unemployment regressed women's workforce progress. Papal encyclicals, such as Pius XI's Casti connubii in 1930 and Lux Veritatis in 1932 emphasised women’s subservience and condemned mothers engaging in employment within marriage. In 1932, the marriage bar prohibited married women from working in the Irish civil service until its repeal in 1973. The Conditions of Employment Act 1936 also restricted women's industry roles. Similar genderbased oppressive notions were pervasive in broader European contexts, such as the Nazi policy "Kinder, Küche, Kirche," in Germany which underscored the prevalence of patriarchal and traditionalist ideals.

In examining the construction of Article 41.2, and the document in general, the absence of a significant presence of women in the drafting of the Constitution roles raises concerns about the extent to which women's perspectives were considered. Hogan, however, notes that women’s organisations and female TDs did raise objections and heavily contested the introduction of such a provision in the constitution. He claims that DeValera made some concessions although not as far as they had hoped.

Nevertheless, the absence of women drafters does not rule out that circumstances could have been different if alternative perspectives were considered.

5 | The Eagle Volume 10 Issue 1

Article 41 A feminist perspective suggests that Article 41.2’s attempt at recognising and protecting women’s value was constructed within the confines of the patriarchy, with the purpose of isolating women in the home. The designation of a homemaking role to women (while there is no corresponding duty and or role for men) was used as a political vehicle to address male unemployment whilst acceding to the Catholic Church’s mission to confine women to homemaking and motherhood. It reflects gender inequality and the biases inherent in the construction of such a contentious provision in Irish history.

The Legal Implications of Article 41.2 The reliance of litigants in utilising Article 41.2 is few and far between. The use of this provision has been attempted by litigants in a mere handful of cases, typically to assert socio-economic rights related to unpaid work in the matrimonial home.

For instance, before the introduction of remedies for judicial separation and divorce, in the case of L v L Barr J held that Article 41.2 mandated the courts to have regard to work done in the home while calculating a wife’s entitlement in the matrimonial home.

Ms Justice Denham in Sinnot v Ireland offered a progressive interpretation of Article 41.2, emphasising that it “does not assign women to a domestic role… [but rather] recognises the significant role played by wives and mothers within the home … the work is recognised because it has immense benefit for society.” Even in the new light shed by Denham J, such reading continues to perpetuate gender norms, particularly concerning the understanding of "care," traditionally associated with women. While her view acknowledges the significance of this care, it falls short of providing the necessary support or rights to those primarily responsible for it.

Reflecting the longstanding division between the public and private spheres as outlined by feminist discourse, the concept of care and the role of mothers have traditionally been relegated to the private realm.

Despite the undeniable public function of caregiving, which Denham J aptly described as being “of immense benefit to society,” it has not received the level of public recognition and support commensurate with its significance. In fact, in DT v CT it was noted that the State’s efforts “to support mothers by not

obliging them to work for economic necessity” constituted only an imperfect obligation. This inherently means that the article could not be relied on in socio-economic litigation. Thus this highlights the urgent need for legal reform in the area of care which promotes its recognition of it as a public responsibility rather than a private responsibility placed mainly on women.

Deconstructing the Value Placed on Care Suggestions have been made to replace the term “woman” in Article 41.2 with a neutral term of “carers” to acknowledge the work of all genders within care as well as deconstructing the influence of patriarchy within the role of caregiving. Whilst a positive step, financial challenges regarding support for carers still persist. Gender inequality remains closely linked to caregiving, with a significant majority of unpaid carers being women. It is also important to acknowledge that the definition of care is not exclusive to involving children but can also encompass the care of older family members, friends, and community. This piece primarily focuses on early childhood care, recognised as one of women’s “biggest barriers to equality.” Not only does this affect women’s access to equal opportunities, it is also significantly diminishing their equal enjoyment of human rights. This leads to constraints in their leadership across all sectors and disrupts their right to healthcare benefits and social security such as participation in a contributory pension. Additionally, the 9.9 per cent gender pay gap (according to statistics from Eurostat, the Statistical Office of the European Communities) is linked closely with care inequality.

Alan Brady describes care not as a luxury of private family life but “essential to the continued survival of our society” on the basis of mutual dependency. The roles and functions of individuals in society should be reimagined through a feminist lens to encompass collective and public aspects, rather than primarily focusing on individualised and private perspectives.

Whilst Article 41.2, endeavoured not to force women into employment there now exists a paradox. Many women who bear the primary responsibility for care are forcing themselves back into the home or significantly reducing their working hours in order to care for their children out of economic necessity.

To challenge women's place in the traditional family structure and elevate care from a private to a societal 6 | The Eagle Volume 10 Issue 1

Photo courtesy of Elena Hernandez, SS Law and Political Science

Article 41 concern, a universal childcare system is imperative.

While some argue for subsidised childcare instead of universal funding, it's essential to consider the socioeconomic communities within Ireland through their intersectionality. It is argued that a subsidised mode of care within the private sector may hinder the quality of public-funded childcare and present inequalities of resources. A universal mode of childcare could ensure that children of all socioeconomic backgrounds receive the same opportunities to engage in critical development in early childhood education and allow parents to engage in equal participation in the workforce.

Finland has implemented a universal childcare scheme dating back to the 1970s. This universal model transcends political boundaries because Finnish society has traditionally valued "domestic" work.

While it comes with challenges, like locating nearby facilities, ensuring high-quality training and professional development among childcare providers, the retention of these skilled professionals, and finally maintaining consistency and uniformity across all providers, its benefits far outweigh its difficulties. It can provide a transformative solution in light of the cost-of-living crisis by relieving the financial burden of unaffordable childcare, allowing parents to maintain participation in the workforce and further contributing to the narrowing of the gender pay gap.

Universal childcare is a necessity for all, not just a political preference, as it reflects a society that values caregiving, gender equality, and shares this responsibility as a whole.

When considering the future of Article 41.2 and the broader discussion on caregiving and gender norms, various approaches emerge, each with its merits and challenges. One perspective proposes deleting the provision simpliciter, allowing for more flexibility in separate discussions about caregiving and gender roles. Another viewpoint suggests a referendum to make the provision gender-neutral, symbolically recognizing carers. However, the pitfalls of past referendums, like the one concerning children, emphasise the need for precise wording to ensure the state has a positive obligation towards caregiving.

I advocate that the perception of care and caregiving in society requires a radical overhaul. The prospect of revising Article 41.2 intertwines the discourse on caregiving and gender inequality, offering the perfect

momentum to reshape societal norms surrounding gender roles and socioeconomic opportunities for families. This approach acknowledges the risk of leaving caregiving policies in the hands of short-termfocused policymakers with limited political horizons.

Universal childcare demands long-term planning and commitment, and as a fundamental right has the potential to address one of the roots of women's oppression.

Conclusion In closing; this piece has endeavoured to contribute a feminist critique to the debate around Article 41.2, emphasising the urgency of addressing caregiving in a comprehensive manner and challenging deeply ingrained gender norms and hierarchies. Recognising that caregiving is a central pillar to issues of inequality and a shift from short-term policies to establishing a societal right can pave the way for true gender equality, breaking down barriers and fostering a long-term commitment to transformation.

Note from the editor: We would like to kindly thank our friends at Trinity FLAC for collaborating with us for this article competition. We also wish to congratulate the winner, runner-up, and give a special mention to the high quality of applications we received.

The Government has announced their intention to hold a referendum that intends to remove Article 41.2 from the Irish Constitution. This competition was run with the intention of promoting discussion around the article itself, gender equality, and what removal of the Article would lead to.

7 | The Eagle Volume 10 Issue 1

Article 41

Runner-Up of The Eagle and FLAC’s Article Competition “Gender Equality in Ireland - Article 41.2 and Beyond” Reproductive Autonomy: a crucial step on the path to gender equality

By Louise Cullen, SS Law and Political Science Introduction In July 2022, the Oireachtas Joint Committee on Gender Equality recommended that a referendum be held on the sections of the Constitution relating to “women in the home”. Deputy Ivana Bacik noted that the way in which women and mothers are referred to in Art 41.2 is based on outdated gender stereotypes, and should have no place in a constitutional text.

While the referendum on these provisions has been delayed, the ultimate abolition of Art 41.2 will be a powerful symbolic victory for gender equality.

However, symbolism can only achieve so much.

While not wishing to undermine the importance of altering Art 41.2, this article aims to address a concrete barrier to gender equality in Ireland namely, the ability to make decisions about how to manage one’s pregnancy. Despite the repeal of the 8th Amendment, Irish women still have limited reproductive autonomy. Unless there is universal and adequate access to contraception and termination of pregnancy services, women will continue to be coerced into parenthood in a way that their male counterparts are not.

Pregnancy and access to rights The ability to control one’s pregnancy is central to achieving full and equal citizenship. Judith Shklar conceptualises citizenship as the presence of equal political rights, and “the dignity of work and of personal achievement”. She highlights that it is not enough to be legally defined as a citizen – one must also have access to a full range of rights and opportunities.

Pregnancy management is intrinsically linked with effective access to human rights. Contraception and termination of pregnancy services are key in allowing women to participate and determine the course of their lives in the same way as men. Without access to

these resources, a woman faces a far greater chance of raising a child without any desire to do so. While conservative US Supreme Court Judge, Amy Coney Barrett, once gave the opinion that women wishing not to be pregnant could simply put their children up for adoption, this is not a realistic option. In addition to the huge physical and emotional effects of pregnancy, giving a child up after carrying it to term can be incredibly traumatic, and should not be lightly touted.

The realistic consequence of a forced pregnancy is thus likely to be parenthood, and all the challenges that this entails; parenthood impinges upon a woman’s ability to work, in addition to her ability to develop her personhood. Women with unplanned children to take care of are less likely to vote, be elected to office, or have extraordinary levels of personal achievement.

Furthermore, when women cannot choose whether or not to become parents, it is not only tangible burdens that they face. Art 41.2, when referring to women’s life within the home, is reflective of the idea that women are mothers first, and participants in civil life secondarily. When a country, by its laws, limits a woman’s choice in becoming a mother, it is enforcing the traditional gender role of motherhood and constricting women’s participation in the civil sphere.

Thus, when we talk of dispelling gender stereotypes in Ireland, we must look at whether becoming pregnant is a choice that women can freely make, or a route that they are coerced into by structural factors.

Reproductive autonomy in Ireland Since the repeal of the 8th Amendment, there has been an undeniable improvement in gender equality and health outcomes. The number of people leaving the country to terminate their pregnancy has decreased significantly. This is a significant reduction 8 | The Eagle Volume 10 Issue 1

Article 41 in barriers to reproductive autonomy, but is also an important symbolic win, a rejection of the practice of women having to secretly travel abroad to terminate their pregnancy.

However, the adequacy of Ireland’s termination of pregnancy services is far from where it should be. The review of the Health (Regulation of Termination of Pregnancy) Act 2018 concluded that the legal framework governing abortion services in Ireland was not in line with Irish human rights obligations. There is inconsistent national access to termination of pregnancy resources, with only 11 out of 19 maternity hospitals in Ireland providing abortion services.

People availing of termination of pregnancy services also continue to be subject to harassment and intimidation outside of centres providing these services.

Women from marginalised groups and those living in rural areas are also at a particular disadvantage when seeking to terminate their pregnancy. The mandatory three day waiting period between a first and second consultation is challenging for those who do not have access to GPs, and who have to travel a considerable distance to get an appointment. Additionally, the need to complete termination before 12 weeks gestation has led to cases where, due to public holidays and limited hospital functionality, some women were legally eligible for abortion but were unable to procure one in time.

With regard to contraception, the situation is not quite so dire. As of September 2023, free contraception is available to women, girls, and transgender and nonbinary people aged between 17-30, for whom prescription contraception is deemed suitable by their doctors. Access to free contraception is crucial; as a representative of the National Women’s Council noted, having access to contraception free of charge enables women to receive their reproductive and sexual rights in full, allowing them to plan if and when they want children.

It is perhaps significant that free contraception tails off at the age of 30. The rationale may be that women over 30 are more likely to be able to afford contraception, or that the State has a limited capacity to fund this facility. However, it could be argued that there is the more insidious consequence that women beyond a certain age are being indirectly encouraged

to become mothers, by the subtle withdrawal of free contraceptive support.

Furthermore, free contraception is only available to women with a PPS number. People without a PPS number, such as asylum seekers, are required to bear the cost of contraception themselves. Ostensibly, this may seem like a simple oversight, but a PPS number is required to gain employment, to apply for social welfare payments, and even to register for further education.

The policy thus excludes already marginalised people from accessing free contraception, and leaves them with comparatively less reproductive autonomy.

Conclusion As a country, we have devoted years to shaming and suppressing women, particularly surrounding pregnancy. However, thanks to the collaborative efforts of activists, doctors, legal practitioners and policymakers, Ireland has come a long way. Ten years ago, the legal termination of pregnancy in Ireland was unthinkable. Free contraception for even a limited cohort was beyond our imagination. We have taken great strides towards providing women with the selfdetermination and autonomy of reproduction that have always been afforded to men. However, many issues remain unresolved.

Some problems surrounding the provision of pregnancy control services are complex, such as conscientious objection or ingrained social views.

Other issues can be overcome with a simple investment of political capital; for example, many GPs have chosen not to provide termination of pregnancy services due to concerns of excessive workload.

In accordance with official recommendations, the Government should liaise with the health sector to increase the number of GPs in Ireland and thereby access to this service. An emphasis should also be placed on assisting marginalised women and those in rural areas, who face particular difficulties in controlling their reproductive autonomy. Nothing is insurmountable, but any solution will require continued effort on the part of stakeholders and policymakers.

We must continue to fight for holistic access to healthcare, for more accurate sexual education, and for a fairer future. Art 41.2 is only one example of the continuing struggle against gender stereotypes in our society, and there are still many concrete barriers that need to be broken down.

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Article 41

Redefining the Family: The Long Shadow of Pope Pius XI and Article 41.3

by Anna Clarke, SS Law and Political Science and Eoin Ryan, SS Law and Political Science In the wake of the Government’s decision to delay the proposed “women’s place in the home referendum” there has been much focus on the debate regarding the removal or replacement of Article 41.2 of the Constitution. However, inadequate attention has been paid to the subsequent clause of Article 41.3.

Article 41.3 concerns the institution of marriage, providing that it is the “institution … on which the Family is founded”. It is submitted that the current constitutional framework places a premium on marriage while failing to recognise the many diverse family structures in modern Irish society. The lack of protection for non-marital families has been widely criticised by campaigners and academics, and has left the Irish constitutional definition of marriage characterised by antiquated Catholic teaching about what typically constitutes a family. This conception is not fit for purpose in a modern, pluralistic 21st century Ireland.

The Catholic Church’s role throughout Irish history has been multifaceted and pervasive. Catholic social teaching has penetrated all aspects of the Irish state since its inception in 1922 and this legacy, despite the Church’s waning influence, is profound. Article 41 of the Irish Constitution has long represented a bastion of Irish society’s staunchly conservative past, the closeness of which many policymakers and citizens would rather forget. The depth of relationship between the formulation of Bunreacht na hÉireann in 1937 and the Catholic Church’s concurrent status in Irish society is reflected throughout the document.

Indeed Article 41.2 is a near verbatim inscription of the proclamations of Pope Pius XI in a 1931 Papal Encyclical that “mothers will above all devote their work to the home and the things connected with it.”

Given this overt entrenchment of a patriarchal sociolegal architecture in Irish society, political analysis and public discourse has often been preoccupied with this second subsection.

However, it is noteworthy that this is not the only Article 41 provision marked by the doctrine of Pope

Photo courtesy of Ellen Campbell, SS Geoscience

Pius XI. In a 1930 Papal Encyclical entitled Casti Connubii, which set out the Church’s position on marriage, the Pope affirmed the Code of Canon Law which states that “the primary end of marriage is the procreation and the education of children”. Saoirse Enright of University of Limerick’s School of Law notes the similarity between Casti Connubii and Article 41.3 which recognises marriage as an important social institution within the context of the family. The special recognition of the marital family over the non-marital within the Constitution has, according to Enright, meant that “the judiciary … have held that the State is allowed to treat marital families more favourably than non-marital families.”

This privilege assured to the by Article 41.3 places a constitutional premium on marriage and fails to recognise the diverse family structures in modern Irish society. Consequently, broad swathes of the population possess insufficient legal protection. The 2022 Census reveals that in the last ten years there has been a 23 per cent increase in cohabiting couples to 176,956, a 41.5 per cent increase in the number of cohabiting parents with children to 85,262 and that currently there are nearly 220,000 one parent families making up 17 percent. The institution of marriage is no longer an essential feature of Irish families, and this social evolution cannot be ignored by the Constitution.

Irish jurisprudence, emanating from Article 41.3, rejects and diminishes the relationship between an unmarried parent and their child. An unmarried father is in effect a ‘legal stranger’ to his child and this relationship is afforded no constitutional protection.

In the 1966 case of State (Nicolaou) v An Bord Uchtála the Supreme Court held that the “family” referenced in the Constitution refers solely to the marital family. In what would surely be considered outdated ideals now, Mr. Justice Walsh wrote in his judgement that “it is rare for a natural father to take any interest in his offspring”. Thus, the court found that an unmarried father could not rely on Article 41’s protections. While legislative intervention now exists 10 | The Eagle Volume 10 Issue 1

Article 41 in this area and ascribes certain mechanisms through which guardianship rights can be granted, it is uncontested that the legal treatment of fathers in Ireland varies substantially based on marital status.

Similarly, the unmarried mother, despite being statutorily recognised as an automatic guardian, encounters issues regarding their legal relationship with their child; Irish courts have recognised that the rights of an unmarried mother are circumscribed and do not attract the inviolable Article 41.3 rights of their married counterparts.

Evidently, the aforementioned statistics on unmarried parents reflect a strong impetus for constitutional reform in this area. It is an intolerable position of the law in contemporary Irish society that parents may be afforded varying legal protections regarding their relationship with their child based on their marital status. While Mr. Justice Humphries of the High Court noted in a 2016 decision that “previous decisions on the lack of rights for the non-marital family are largely creatures of their time”, reform remains necessary to provide an equality of constitutional rights between marital and non-marital families.

Reform is necessary to avoid constitutional obsolescence, while the ideological gulf between the document and the society it represents must be remedied.

The gendered element of Article 41.3 should not go unmentioned and its subliminal patriarchal messaging is in need of urgent reform. The neglect of unmarried fathers implicitly provides that the burden for child rearing lies with the mother and consequently legally consolidates patriarchal gender norms within the constitutional framework. Similarly, discrimination against unmarried mothers reflects misogynistic norms. Reform is necessary to avoid constitutional obsolescence, while the ideological gulf between the document and the society it represents must be remedied.

The constitutional primacy of marriage has placed cohabiting partners at a severe disadvantage to their married counterparts. As per the Civil Partnership and

Certain Rights and Obligations of Cohabitants Act 2010, even upon fulfilling certain temporal criteria, cohabiting couples face constraints their married peers do not. Cohabiting couples do not qualify for family home protections, are subject to inheritance tax and guardianship of their children can be inhibited.

Constitutional reform is necessary to rectify inequalities in this area.

Reform of Article 41.3 has long been mooted. The 1996 Constitutional Review Group recommended that the article be amended to protect family life “whether based on marriage or not.” More recently, both the Report of the 2021 Citizens Assembly on Gender Equality and the 2022 Report of Joint Oireachtas Committee on Gender Equality called for constitutional change so the definition of the family “is no longer limited to the marital family.” In July 2023 Attorney General Rossa Fanning told the Supreme Court that in relation to the definition of the family it is “possible that a proposal would be put forward to amend Article 41”. There have been media reports that constitutional reform to the definition of the family is imminent. However, the Government has yet to make an official announcement on the holding of any such referendum. In consideration of the contemporary diversity of Irish family life as highlighted above, it is submitted that a vote to amend Article 41.3 should be at the top of the Government’s agenda of constitutional reform.

Article 8 of the European Convention on Human Rights protects the “the right to respect for [their] … family life.” The jurisprudence of the European Court of Human Rights has clearly shown that the protection of Article 8 is not solely limited to the marital family.

As set out in Johnston and Others v Ireland the Court will examine factors that demonstrate de facto family ties, such as whether the applicants are cohabiting and the constancy and length of the relationship. It is submitted that in the case of a successful amendment to the Constitution, the Irish courts would be able to rely on similar factors.

There is no doubt that broad societal benefit derives from an egalitarian and socially responsive constitution. The reform of Article 41.3 would convey a movement away from a conservative Catholic past and serve as a reaffirmation of Ireland’s commitment to equality.

11 | The Eagle Volume 10 Issue 1

Photo courtesy of Ciara Hogan, Copy Editor

Law in the Digital Age

Isolated Innovation: The shortcomings of British AI Regulation

by Kyle Egan, SS Law In March 2023, the United Kingdom published its white paper outlining plans to regulate Artificial Intelligence (AI). The British government is proposing what it considers a “pro-innovation” approach, free from the burden of heavy regulation and without the “innovation-stifling” implementation of a single purpose AI regulator. By referencing and refuting several elements of the EU’s regulation throughout the white paper, the plan positions itself deliberately as the antithesis to the risk-based approach currently proposed by Brussels. Risk-based levels involves assigning an AI system a level of risk based upon the potential consequences or impacts it may have upon people when it is deployed.. The UK’s innovation-based approach may sound ambitious and entrepreneurial, but it is entirely disconnected from reality.

There are three fundamental flaws in the UK’s AI regulation plan: in the first instance, the argument that the existing framework is sufficient to regulate AI has been heavily refuted. Furthermore, key AI innovators are leading the call for responsible AI regulation.

Finally, the disconnect caused by diametrically opposed regulatory systems between the UK on one hand and the EU and the US on the other only serves to isolate British innovation in the sector from other key players.

The British Approach: A Pro-innovation Framework The underlying theme across the British white paper is an emphasis on facilitating innovation without the heavy-handed restraints of statutory intervention. This innovation is to be underpinned by five principles: (1) Safety, security, and robustness, (2) Appropriate transparency and explainability, (3) Fairness, (4) Accountability and governance, (5) Contestability and redress.

The British government claims that innovation that respects these principles can already be adequately governed by existing regulation. It believes that

national regulators such as the Health and Safety Executive, the Equality and Human Rights Commission, and the Competition and Markets Authority are adequately suited to govern the deployment of AI within their respective sectors. By allowing already competent regulators to adapt to the deployment of AI within their remit, the UK intends to ensure that innovative AI systems can be deployed rapidly with competent regulators adapting individually.

This approach has been described by the report as “regulating the use – not the technology”. The report further claims that the deployment of AI systems can be monitored on a broad basis to consider how the principles outlined above are being applied in practice. If necessary, legislative intervention aimed at providing regulators a greater or more clarified remit to enforce the responsible deployment of AI can be utilised.

European Approach: Risk-Based Assessments European Regulation of AI has been in the pipeline since it was first proposed in April 2021. The European framework focuses on a risk-based approach, which assigns varying degrees of obligations depending on the potential risk posed by the deployment of the system.

At the extreme, AI systems which are intended to cause physiological harm, implement a social credit scheme, or to be used for real-time biometric identification in public are explicitly prohibited. The concern for these systems arose as a result of alleged Chinese systems which impose severe sanctions upon suspected jaywalkers or train fare dodgers noticed by AI integrated CCTV systems. High-risk AI such as systems used to monitor employees are subject to distinct obligations, such as human oversight, monitoring, and conformity assessments. Limited-risk AI has significantly lower obligations, only requiring the system to identify itself as artificial intelligence when interacting with people. his would be applicable

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to customer-service chatbots for instance. At the lowest end of the scale are minimal-risk AI, which is a catch-all category covering any system which does not fall into the higher categories; these AIs are not subject to any further obligations than already imposed by existing regulation.

The underpinning objective of the European approach is to develop a ‘future-proof’ and technologically neutral regulation. This concept aims to ensure that the AI regulation governs the specific characteristics and elements of AI which pose particular levels of risk, rather than attempting to govern distinct technologies themselves. The logic behind this principle is that rapidly advancing AI could quickly outgrow any definition or description provided within an EU Regulation. Thus, by regulating the characteristics and elements, new innovative systems will nonetheless remain within the remit of the EU regulation.

The Shortcomings of the British Report The primary element of the British approach is reliance upon existing regulatory frameworks. Yet, the ability of existing regulators to adequately govern this area is questionable. Dr. Giulia Gentile from London School of Economics points to the fact that many AI systems are multi-layered which presents the immediate issue of which regulator ought to consider the system within their remit. This is likely to lead to inconsistencies, discrepancies, and an overall lack of cohesion regarding the deployment of responsible AI. Furthermore, a lack of appropriate expertise within certain regulators will prevent effective enforcement of existing regulations. Overall, utilising a broad range of existing regulators to govern a novel and exceptionally technical area will inevitably lead to a breakdown in enforcement; this will condemn AI regulation to inconsistency, incoherence, and unenforceability.

In other sectors, a laissez-faire approach to regulation would be welcomed by key actors. Yet in the case of AI, many of the major players have been proactive in calling for a responsible and concrete framework for the development of responsible AI. Sam Altman, CEO of OpenAI, called for an international regulator to examine AI systems, while IBM’s Chief Privacy Officer Christina Montgomery advocated for “precision regulation”, which regulates the use of AI systems, and recognised the inherent high risks

Photo courtesy of Ciara Hogan, Copy Editor

involved in the application of some technologies. This hands-off approach favoured by the British government fails to address the concerns raised by many prominent leaders in AI technologies. The suggestion that no statutory framework would foster an innovative AI ecosystem is in ignorance of the fact that AI innovators must instead attempt to navigate a haphazard minefield of existing regulations across sectors.

An alternate: This suggests that a lack of statutory framework would create an innovative AI ecosystem.

However, this is ignorant of the fact that AI innovators must instead attempt to navigate a haphazard minefield of existing regulations across sectors.

Isolated Innovation Research and development of AI in the United Kingdom is currently thriving. The deployment of AI in academia and industry enjoys £1 billion in support from the British government, whilst private companies across all sectors are expecting to increase their investment in AI over the next 10 years according to a Deloitte report.

Yet, with the EU and the United States approach to regulation broadly aligning with regard to managing AI through a risk-based approach, the United Kingdom presents as a clear outsider. A lack of cohesion with regulators in other jurisdictions isolates innovation in the United Kingdom. Haphazard regulation on a national scale already presents difficulty in the United Kingdom, as is the case globally whilst governments seek to catch up with the AI explosion. However, it is submitted that this difficulty combined with regulatory disconnect with its neighbours, will diminish the United Kingdom’s role as a leader in Artificial Intelligence. The firms which emerge as the global leaders in artificial intelligence will be unlikely to invest in an isolated United Kingdom, where the development of AI systems will not necessarily be compatible with international markets. Rather, the EU presents itself as an ideal innovation hub wherein AI systems would be developed under a regulatory framework broadly aligning with the United States, the current AI powerhouse.

Ireland’s Interest With the sheer scale of business conducted between 14 | The Eagle Volume 10 Issue 1

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the United Kingdom and Ireland, it is crucial that AI systems utilised for conducting business in either jurisdiction are cognisant of the issues presented by regulatory disconnect. This issue is particularly prevalent in employment contexts, where British based businesses with Irish branches may use

Artificial Intelligence for a broad array of purposes, such as recruitment, managing performance, or creating rosters. It is essential that the rights of Irish businesses and workers are vindicated when dealing with Artificial Intelligence developed in an exceptionally distinct regulatory framework.

The Inadequate Assumptions of Contract Law Doctrine in the Online Age

By Simon Sun, L.L.B. Graduand, Trinity College Dublin Feinman and Gabel, in “Contract Law as Ideology,” describe contract law as “an elaborate attempt to conceal what is going on in the world.” They identify that whilst freedom of contract appeals to people’s attraction towards social solidarity and personal autonomy, it also hides how the social order can obscure these values. That is to say that contract law has an underlying tendency of legitimising an “oppressive economic reality by denying its oppressive character.” Feinman and Gabel account the development of contract law theory from the competitive capitalism era with its ideology of voluntary personal bargains, to the era of monopolistic capitalism which sought to temper competition with an ideology based on cooperation and regulation. Using one word, the authors describe contract law theory as moralistic in the 18th century, formalistic in the 19th century, and chaotic in the 20th century, of which the continuing thread from each era of contract law is its propensity to allow the powerful to feel good about the world whilst reinforcing their power within it. This theme of elitism in contract law has become all the more relevant in the 21st century with the rise of standard form contracts with terms and conditions in the digital age.

The Myth of Autonomy Above all else, the great myth of contemporary contract law is arguably the idea that contracts are agreements made by freely and autonomously bargaining entities and individuals. In reality, when a person enters into a commercial contract, they enter into an “all-or-nothing” agreement with a large corporation. Furthermore, such agreements limit the negotiating power of the consumer through their use

of a standard format, drafted by a team of lawyers. It is commonly the case that the consumer is faced with the choice between accepting all the terms and conditions, and declining to use the service at all.

Thus, it is no surprise that disenchanted users tend to skip past the legalese of consumer contracts, and use apps and websites without reading their terms and conditions.

[A]nother clause stated that by agreeing to the terms of service, users would “give up their firstborn child to NameDrop.”

To illustrate this, professors at the University of Toronto conducted an experiment by slipping predatory “gotcha clauses” into terms of service and privacy agreements. By setting up a fictional professional profile platform called NameDrop, the researchers included an exemption clause in the user agreement that would give the platform the right to share user data with the U.S National Security Agency and going even further, another clause stated that by agreeing to the terms of service, users would “give up their first-born child to NameDrop.” Of the 543 of undergraduate students surveyed, 2 per cent identified the data sharing clause and only 1.7 per cent discovered the child assignment clause.

While some may characterise the practice of accepting terms and conditions without reading them to be irresponsible, consumers arguably have no other choice. It is no exaggeration to say that the performance of daily tasks has become completely 15 | The Eagle Volume 10 Issue 1

Law in the Digital Age

contingent on accepting consumer contract clauses.

For instance, on a daily basis most students will engage in an array of activities that involve exposure to consumer contract clauses. These include commuting to college, connecting to campus wifi, using internet search engines, taking notes on software programmes, and submitting coursework online. The time needed to reflect on these terms alone would consume one’s day-to-day life, where stopping and reading the terms forced upon you to get an education would in turn take the time away from actually receiving said education in a self-defeating cycle.

Theories of contract law that focus on the preservation of autonomy, defend the validity of one-sided contracts, on the basis that consumers have chosen to enter them. Yet, the strict enforcement of these contracts is arguably an exercise in coercion.

Furthermore, the existence of minimal regulation over these contracts appears to work against the goal of liberating private citizens; as it is impossible for someone to consent in a meaningful way when they are blindly forced to accept terms and conditions.

Utilitarian justifications for the autonomy-based approach may point to the importance of economic efficiency. However, these arguments assume that voluntary exchange is mutually beneficial, and that the enforcement of voluntary obligations leads to overall welfare. Rather, these kinds of consumer contracts favour the interests of large corporations, which possess teams of lawyers and almost limitless resources allowing them to draft favourable terms, such as exemption clauses, to the detriment of the consumer who is often both unaware and powerless to alter their situation. In this sense, contract law arguably serves the interests of those who are securely entrenched in society, and seems to value certainty for commercial actors above all else. In a consumer protection context, a concerning example of this is provided by exemption clauses that exclude tort liability and claims for damages (such as the vicarious liability clause in dispute in the case of Carroll v An Post).

Critical legal studies reject the idea that the law is coherent and predictable. It points to how the fundamental contradiction that “relations with others are both necessary and incompatible with our reedom,” explains how the liberal concept of freedom of contract has been used to embed the status

quo. This contradiction establishes that while attempts can be made to strike a balance between autonomy and community, the balance achieved will vary from place to place, era to era, and judge to judge.

Moreover, modern contract law is similar to contracts in the past in that it keeps formulation or the drafting of contracts as the core from which power emanates and becomes entrenched. Despite formulation being the stage at which both parties have the most capacity to exercise coercion, modern contract law and standard form contracts have made it easier for contracts to be drafted which allow the coercing party to obtain a presumption of validity, which is difficult to rebut. This gives greater licence for corporations to impose more onerous one-sided terms, and leaves the impression that a more realistic and flexible view would be for the courts to develop equitable common law doctrine, such as unconscionability by analogy with legislation to address this.

Feinmann and Gabel suggest that throughout the centuries ‘it was not the law that restrained the judges, but their own beliefs in the ideology of law.’ Whilst the doctrine of unconscionability does exist in Ireland in relation to online standard form contracts, and was developed with the interests of consumers in mind, it has yet to develop a structured line of authority that acknowledges the fundamental differences between consumer contracts and commercial agreements. The Supreme Court in McCord v ESB, a case involving an electricity supplier that held a statutory monopoly, determined that non-negotiable contracts disadvantage the consumer who is prevented from “ask[ing] that a single iota of the draft contract presented to him be changed before he signs it.” While this reasoning of Henchy J’s in McCord could have been expanded upon, judges in later decisions such Carroll v An Post appear to have limited this approach.

Conclusion The common law arguably develops continuously based on society’s needs. While consumer protection legislation certainly has a useful role to play, it will be most effective if the Irish judiciary accepts the ideology that the assumption of autonomy is problematic in the online age. Corporations have restricted the collective power of consumers by using and implementing standard form contracts with exemption clauses, and they will continue to do so unless the law in Ireland adapts the doctrine of unconscionability to standard form contracts.

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Photo courtesy of Alex Coghlan, SS Law and Political Science

International Law

Striking the ‘Right Balance’ Between Credibility, Effectiveness, and Political Feasibility when Designing Multilateral Environmental Agreements (MEAs)

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

Introduction Striking the right balance between credibility, effectiveness, and political feasibility in designing Multinational Environmental Agreements (MEAs) is notoriously difficult. What constitutes the right balance between these aims is inherently dependent on the lens of analysis taken; namely the maintenance of national autonomy, ecocentric value prioritisation, and the overarching artificiality of legal formalism and symbolism. Nevertheless, in drafting MEAs, states have many available design tools and techniques to assist in deriving some form of balance.

This article will explore how states utilise some of these drafting techniques, with particular emphasis for brevity on depth in design with reference to specific MEAs. Ultimately, it will be argued that depending on the frame of analysis, concluding how the right balance can be struck between credibility, effectiveness, and political feasibility is difficult to discern. Not only is the concept of the right balance inherently relative, but also subject-matter specific.

Depth in Design A Key Distinction Between Bindingness and Prescriptiveness When analysing the design of MEAs a key distinction must be highlighted between bindingness and prescriptiveness. Treaties are binding on ratified Parties and are by default symbolically credible.

However, MEAs vary dramatically in their precision of obligations, and thus their requisite prescriptiveness. This design choice, centred around Bodansky’s conceptualization of “depth…stringency and strength”, has broad implications in determining how the right balance can be struck between credibility, effectiveness, and political feasibility. To illustrate this premise the Paris Agreement will be analysed.

The Paris Agreement: Hard in Form, Soft in Substance, A Balanced Design Choice?

The legal form of the Paris Agreement as a binding instrument as opposed to a non-binding pledge, reflects its seriousness of intent and credibility.

Further, from a symbolic perspective by nature of its legal form it may be deemed as credible and effective in reflecting a political will to be bound. (a) Style Over Substance?

From another perspective the Agreement may appear to prioritise style over substance, as its legal form may lack true effectiveness. The legislative language is important here. The use of language such as “parties aim to”, “that [Parties] intend to achieve” and “should” in outlining the Parties’ obligations throughout, significantly undercuts credibility and effectiveness while bolstering political feasibility, through weak substantive prescriptiveness.

This design technique, which lacks stringency, strength and ambition may allow for national flexibility, political feasibility and thus successful negotiations and ratification. However, in striking the above balance, when taking the inherent self-interest of the parties into account, it is difficult to contend that from an ecocentric perspective that this approach is effective. This is because compliance and effectiveness are judged within unambitious confines.

Moreover, due to the lack of specific concrete targets and substantive requirements, it is questioned - how is actual effectiveness accurately measured? This is worsened by the lack of powers of review of substantive reporting in deference to national autonomy. (b) Effectiveness Depends on the Conception Taken, COP-28’s Findings will be Telling

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It is prudent to distinguish between both conceptions of effectiveness. On one hand, effectiveness is judged on how well the MEA’s design addresses the issue at hand. In the Paris Agreement’s case this is anthropogenic climate change.

Conversely, effectiveness can mean the degree to which the MEA has changed a state’s behaviour. The former is easier to measure as the aggregate efforts to address climate change and keep below the Paris Agreement’s 1.5°C aspiration are considered under the Global StockTake which occurs every 5 years. Whether the Paris Agreement is being effective in this regard will be discussed in light of the most recent Global SockTake at COP - 28 in November 2023. However, concern is merited as indicators suggest the targets will not be met.

Determining whether the Paris Agreement is effective in terms of changing a state's behaviour is a more difficult task. A state may proclaim to be acting in response to the Agreement and addressing climate change by having formal climate policies in place.

This would amount to an effective MEA as it has changed the state's behaviour in relation to climate change. However, determining if these policies are materialising in reality is difficult to discern without infringing on a nation’s sovereignty. Therefore, there is no way to definitively know apart from relying on a nation’s good faith. (c) An Oxymoronic Agreement?

Further, the Paris Agreement is somewhat of an oxymoron. Article 3 outlines “ambitious efforts as defined” in other Articles. On a narrow reading one may be tempted to characterise this as balancing credibility and substantive effectiveness, as such appears at least superficially “ambitious”. However, when one reviews these “other” Articles, repeated use of weak substantive terms that are deferential to national autonomy, such as “should”, “reflects [the Parties] …ambition” and “encouraged” are apparent.

These linguistic choices may be characterised as “ambitious”, effective and politically feasible from the Parties’ perspective, who draft these provisions in light of political will. However, by no measure are these weak obligatory terms ambitious in their ordinary meaning. Thus, in striking a balance, although political feasibility and formalistic credibility may be realised, actual effectiveness in achieving eco-centric ambitions and the Treaty’s

overall objective is questionable.

[I]t is disappointing that the making of international agreements often mandates the political climate to be prioritised over the physical climate. (d) A Skewed Balance Towards Political Feasibility?

This lack of strength and stringency in the Paris Agreement is not surprising. MEAs are not zero sum and sanctions represent a net loss to all parties. The stricter the provisions, the higher the cost of noncompliance. In terms of the Paris Agreement, this is a consequence of a skewed balance towards political feasibility, in lieu of eco-centric practical effectiveness. The Agreement is technically binding.

However, through an absence of specific obligations, and obligatory language only being employed in procedural reporting and communicative provisions, this design choice of soft law in a hard form amounts to more of a political statement of intent, than a balanced Treaty of effective obligations. However, considering the political climate in the background of the Agreement’s negotiations, the fact an agreement was reached is an achievement in itself. Nevertheless, it is disappointing that the making of international agreements often mandates the political climate to be prioritised over the physical climate. (e) Relying on Customary International Law to Impart Effectiveness In seeking a mechanism of how to achieve balance, this design choice is met with further reservations. It is acknowledged that effectiveness could come in the form of the rule of customary international law to “make full reparation for the injury caused by the internationally wrongful act”. However, this is only relevant to regimes which include a dispute resolution procedure, and one must question what injury could possibly be claimed under the Paris Agreement due to its lack of specificity in obligations and reporting regimes. Moreover, due to Agreement’s muted provisions, it is hard to foresee how reputational damage will ensure effective compliance. What substantive compliance actually means is not only ambiguous, but delegated in part to Parties’ own assessment. (f) What Balance is Struck?

Applying the governance trilemma to the soft

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International Law

deferential design of the Paris Agreement, as ambition is low, participation is therefore high and compliance will be relatively high. This balance of compliance and ambition is inherently different to that of ambition and effectiveness. Compliance is stipulated by an Agreement’s positive limits, whereas effectiveness of an Agreement is relative to the lens of analysis. Thus, in applying this to the Paris Agreement where Parties can unilaterally select emission reduction obligations for themselves, the level of compliance with such may be high as ambition may be low, but that does not necessarily entail that this will be effective by any metric.

The Montreal Protocol: The Other Side of the Same Coin – High Aspirations, Precise Provisions – (a) Excelling Where the Paris Agreement Falls Short?

As then UN Secretary General Kofi Annan declared, the Montreal Protocol was “perhaps the single most successful international agreement to date”. With over 193 ratifications this is difficult to refute. The Protocol contracts each Party to meet mandated targets through mandatory language. These design elements, at least formalistically, go further than the Paris Agreement’s diluted approach in striking the balance between credibility and effectiveness. The Protocol’s precise approach excels in all the places in which the Paris Agreement seems to fail. (b) The Importance of Political Will.

However, before wholly endorsing this approach as a solution to identifying the right balance between credibility, effectiveness and political and institutional feasibility, certain considerations must be noted. This precise and stringent design has excelled in relation to the regulation of reducing the prevalence and production of chlorofluorocarbons (CFCs). However, a particular commonality in political will allowed the setting of rigorous standards and thus its subsequent effectiveness.

Although to allay some political reservations the Protocol balances requirements through incorporating the ‘common but differentiated responsibilities principle’, a clear resolve in political will at the time allowed for the regime’s true effectiveness. This highlights a key consideration in how to appropriately design MEAs to strike the right balance. Taking a prospect theory approach, states will most often be inherently self-interested and thus politically driven.

Consequently, any design must adequately satisfy this reservation before a balance with effectiveness can be mused. (c) MEA Design and Effectiveness is Subject Matter Specific The Protocol’s specification in standard setting in ensuring effectiveness is not only politically dependent, but also subject matter specific. The precision in contrast to the Paris Agreement, allows for an effective measurement metric for compliance.

However, as noted from the World Heritage Convention, notwithstanding absence of precise targets, compliance has been substantial. Thus, depending on the subject matter at hand, MEA design, be that stronger or weaker obligations, may range in effectiveness. (d) A Circular Problem There is a common overarching difficulty in deriving the suitable balance. Weaker provisions may be effective if political will permits, and political will is needed for stronger precise obligations to be agreed upon. However, the reasoning for the need for stronger, precise obligations is namely due to a lack of political will to comply. Thus, there is a circular difficulty hampering the design of every MEA, governments by their very nature, prioritise shorttermism and national political gains over overarching global goals.

Conclusion – the Right Balance - A Matter of Perspective and Degree How to garner the right balance between credibility, effectiveness and political feasibility in MEA design is difficult. Not only is the right design choice subjectmatter specific, but whether it strikes the right balance is inherently dependent on the frame of analysis taken, be that the maintenance of national autonomy, eco-centric prioritisation or the artificiality of legal formalism. Thus, in answering how the right balance can be struck, the answer lies in degree and perspective. It truly depends upon whether one believes reaching an imperfect agreement between states is more important than the stringency of the agreement itself. There is value in having an agreement in place as opposed to an impasse.

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International Law

The Yemeni Struggle for Justice

By Elena Hernandez, SS Law and Political Science Background Yemen is currently embroiled in a civil war and humanitarian crisis that has torn apart the country.

The devastation plaguing Yemen is an ongoing tragedy which is now entering its seventh year.

Amidst a world of Russia invading Ukraine and bombings in the Middle East, the situation in Yemen has been relegated to the back row of the world's mind. This does not mitigate the fact that the world must take legal action. The situation merits international action, collaboration, and attention, particularly as the death toll is expected to exceed 350,000 this year.

The origins of the situation are complex and make this an intractable conflict. Sources of this conflict lie in various political, religious, and economic ideals that persist in Yemeni society. The major actors are the Houthi rebels, a Shiite local group, and the internationally recognized Sunni-majority Yemeni government. The Houthis are backed by Iran and the Government is backed by a coalition of other countries led by Saudi Arabia. Simultaneously, the United States and the United Kingdom are secondary actors in this devastating situation sending aid to the Saudi-led coalition.

Despite the various actors in play, the main conflict began between the Houthi rebels and Yemen Government. The current Yemeni Civil War has been ongoing since 2014, when the Houthi rebels seized the capital city, Sana'a. The Iran-backed Houthis ousted the internationally recognized Yemeni President, Ali Abdullah Saleh. Various waves of conflict and periods of peace have occurred over the last seven years. The recent United Nations-mediated truce expired in October of 2022 but has continued in effect beyond the expiration date. In April 2023, peace talks resumed again creating an opportunity for resolution of this near decade-long crisis. Despite the potential for peace, the violations of international law and the victims of the war cannot be forgotten.

One must consider the duration and intensity of the conflict, how the world is allowing the humanitarian

crisis to continue, and where shoulders the burden of enacting peace. There are governing customs and laws that dictate the behaviour of states and the actors involved in conflicts, namely international humanitarian law (IHL) and international criminal law (ICL).

International Law The purpose of IHL is to protect the dignity and lives of people impacted by armed conflict and the goal of the International Criminal Court (ICC) is to prosecute war criminals and aspirationally serves as a deterrent.

Distinction and proportionality are fundamental underlying principles of IHL which is derived from treaties and customs. The principle of proportion entails that actors must take into account the potential advantage in relation to destruction or lives lost.

Distinction forces all parties to differentiate between civilians and combatants. All relevant actors must comply with binding international humanitarian law, and cannot derogate from its principles save in cases of emergency. As reaffirmed in Nicaragua v United States of America, actors in non-international conflict are still constrained by customary law. The violation of rules by one party does not excuse reciprocal violations. This remains true for non-international armed conflict, and thus Yemen.

The current situation in Yemen falls under the category of non-international armed conflict due to the fact that the main actors are the rebel Houthis and the officially recognized Yemeni government.

Another criterion for non-international armed conflict is for the conflict to occur “in the territory of one of the High Contracting Parties”. This condition is also satisfied due to the conflict taking place in Yemen which is the territory of both primary actors. The distinction the relevant law makes between international armed conflict and non-international armed conflict is a critical point of clarification.

Legislation in this area is more stringent than an international armed conflict.

Non-international armed conflict has been critiqued due to its lack of clarity surrounding the different 21 | The Eagle Volume 10 Issue 1

International Law

categories of people in a conflict, and overall hazy rules. While the law on international armed conflict differentiates between combatants, non-combatants, and civilians, the legislation on non-international conflict has less distinctions made for those involved with the conflict. Non-international armed conflict is more complicated by nature due to the issue occurring between a state and non-state actor within its own territory. Thus, the pertinent legislation is potentially weaker. Common Article 3 of the Geneva Convention and the 1977 Additional Protocol II to the Geneva Conventions are the primary governing legislation.

Article 3 binds the parties in a non-international conflict, to at minimum, the humane treatment of people not involved in the conflict without discrimination. There is also express prohibition of murder, torture, hostages, outrages on personal dignity, and the positive duty to care for the sick and wounded. The 1977 Additional Protocol imposes the duty to award medical personnel full protection, impose a duty to allow searching for victims from opposing sides, and bolster the need to provide essentials for civilians. The Geneva Convention and Additional Protocol I stipulate the protections awarded to “protected persons” which include combatants and civilians. In the Yemen conflict those categories of people are not recognised and the distinction is “persons taking no active part in hostilities.” The Houthis are unable to obtain ‘combatant status’ due to their classification as ‘freedom fighters’ or ‘rebels’. This classification restricts them to minimal protection under the applicable Common Article 3 of the Geneva Convention, in comparison to the protection given to those with ‘combatant’ status in international armed conflict. All parties involved in the Yemen conflict have allegedly violated various provisions of the Geneva Conventions.

Violations and War Crimes As stipulated above, there are legislative provisions that infringe on actors’ behaviour during times of conflict. Under the relevant legislation, the Houthis are prohibited from firing indiscriminately, and the Government is restricted from impeding humanitarian aid. Underpinning is the principle of humane treatment of individuals not involved in the conflict, often referred to as non-combatants or civilians. Both sides are alleged to have disregarded the express prohibition against indiscriminate attacks against

civilians and non-combatants. For example, the Houthis have fired without distinction into various populated areas including Marib, Taizz, Hodeidah, and Mocha which are located in Southeastern Yemen.

Saudi Arabia has also fired injudiciously into Yemen violating the same Geneva Article.

Furthermore, the impediment of humanitarian aid and critical provisions in the conflict-laden territory represents a secondary violation. The Houthis and Saudi Arabia face allegations of impeding the flow of humanitarian aid, food, and medicine. Humanitarian officials on the ground report facing severe blockages whilst attempting to administer aid and travel through the territory. Saudi Arabia imposed naval and aerial blockades from 2015-2021, which exponentially increased the humanitarian crisis.

Overall, there is sufficient evidence to open an investigation and pursue justice on an international scale.

Another alleged crime is the forced disappearances of civilians. There have been numerous claims of this violation, though not all have been corroborated. Adel al-Hasani is a Yemeni journalist who fell victim to Houthi detention and forced disappearance for a sixmonth period in 2021. During this time his family and friends were unable to access information on him while being told by the Government (that they) had no record of him. This explicitly qualifies as enforced disappearance under the International Convention for the Protection of All Persons from Enforced Disappearances. Moreover, there are numerous other victims of forced disappearance and other violations.

Estimations for enforced disappearances from all sides of the conflict are estimated to be around 3,000 people. Overall, there is sufficient evidence to open an investigation and pursue justice on an international scale.

Impediments to Justice The Yemen conflict has been rife with allegations of humanitarian rights violations and war crimes. Many allegations are substantiated by witnesses, photographic evidence, and other forms of corroboration. One might conclude that this would result in a successful prosecution at the ICC, but that remains to be seen. There are significant impediments 22 | The Eagle Volume 10 Issue 1

Photo courtesy of Alex Coghlan, SS Law and Political Science

International Law

to prosecution at the ICC and achieving justice for victims in the Yemen war. In Prosecutor v Germain Katanga and Mathiey Ngudjolo Chui, we see a successful prosecution in the ICC for war crimes in anon-international armed conflict. In this case, Germain Katanga was found to have committed war crimes and crimes against humanity as the leader of a rebel group in the Democratic Republic of Congo.

political sway. The US has veto power in the United Nations (UN), and Trump vetoed a resolution in 2019 to end US involvement in Yemen. The practical limitations of the ICC are apparent, particularly in cases without proper jurisdiction.

This precedent could aid the prosecution in securing redress for Yemenis. However, non-ratification of the Rome Statute by Yemen means that without referral to the United Nations Security Council (UNSC), an investigation cannot begin due to lack of jurisdiction.

Only those who have ratified the Rome Statute are able to be investigated by the UNSC without a referral from a current member or the state itself.

Additionally, the geopolitical ramifications of prosecuting the relevant actors in the Yemen conflict could limit the potential for the ICC's involvement.

Both the United States and Saudi Arabia are important players in the political quagmire and carry immense

Conclusion This article has explored the Yemen humanitarian crisis and the lack of international attention it has received. Further, it examined the immense legal complexities that arise out of the protracted conflict, countless allegations of international humanitarian law violations, and war crimes. Both sides of the conflict have blatantly disregarded the foundational elements of IHL including distinction and proportionality as discussed previously. IHL has a positive obligation to protect individuals' lives and ensure dignity throughout the course of conflicts.

These inherent breaches must be addressed and human dignity must be protected even in the face of political and legal obstacles.

Photo courtesy of Alex Coghlan, SS Law and Political Science

Photo courtesy of Cara O’Donnell, SS Law and Political Science

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Photo courtesy of Emma Bowie, L.L.B. Graduand

National Law and Policy

The Perjury Act 2021- Two Years Later

By Lawrence Valentine Murray, JS Law We live in a day and age where the idea of objective truth is condemned, and subjective opinion is touted as truth merely because of the value it holds to the individual. It is perhaps a comforting idea then that, at the very least, the courts still place at least some semblance of value upon the truth. The most obvious and oft-portrayed indication of this is the continued existence of the Oath, which, regardless of its ‘academic’ utility, still holds symbolic value as an indication of the legal system’s ideological commitment to the truth. However, a less noted, but arguably more critical aspect of the law regarding this commitment to the truth, is the law against perjury.

In a system vulnerable to lies and deceit, the idea of perjury is merely a desirable principle, but an essential element of the legal system. It is therefore surprising that, prior to 2021, the statutory basis for perjury was somewhat lacking in effectiveness.

Although it existed as an offence in statute, few would argue that legislation dating from 1888 and 1909 are the best sources upon which to base an offence today.

An update to the law recommended by the Law Reform Commission in their 2016 Report on Consolidation and Reform of Aspects of the Law of Evidence.

Before the introduction of the Criminal Justice (Perjury and Related Offences) Act 2021, the ineffectiveness in this area was clear from the lack of prosecutions. An Garda Síochána reported that in the ten-year period to 2020, it had only 31 cases of perjury on record. One may be an optimist when it comes to the actions of others, but it is difficult to believe that, over ten years, there were only 44 potential cases of a witness lying to the court.

Clearly, action was needed, and such measures were taken with the signing into law of the aforementioned Act in July 2021. The main goals of the Act were; to make it easier for the court to investigate and prosecute potential cases of perjury; to deter perjury and to provide for clear penalties in law. Regarding the last goal, the Act has undoubtedly been a success, providing for a €100,000 fine or 10 years in prison

upon conviction. Whether the Act has been successfulupon the first ground 2 years after its passing is still unclear. To determine the answer, the recorded cases of perjury between 2010-2020 must be ascertained.

As stated previously, there were 31 recorded cases of perjury in this period. What this means is that there were 31 potential cases in which a member of An Garda Síochána had determined that perjury had likely occurred and there was no credible evidence to the contrary. However, an issue rapidly arises. Prior to 2014, the Central Statistics Office (CSO) recorded Garda perjury statistics as one offence of many under the category of “Perverting the Course of Justice”.

Unfortunately, in 2014 it emerged that there were major issues with how the Gardaí had gathered crime statistics. As a result of this, perjury ceased to be recorded as a separate offence and instead was lumped into a single number along with the other offences in this category. The issue is that in order to determine the effectiveness of the Act, we need an actual number for perjury offences specifically.

Between 2010 and 2013 there were 10 recorded cases of perjury in the courts. This accounts for, on average, 3.18 per cent of all offences in the category “Perverting the Course of Justice” for this period.

This averages to about 2.5 cases of perjury a year.

Applying this average to the available numbers under the same category for the years 2014 to 2020 gives us an additional 11 recorded offences. This results in a total of 21 cases of perjury from 2010 to 2020. This, of course, cannot be correct as this results in 10 cases that are unaccounted for, (remember the 31 overall reported by An Gardaí between 2010-2020). The average percentage has to increase to about 6.2 per cent to make up for this windfall, leaving us with a new average of about 3 cases a year. If we apply this new 6.2 per cent to the numbers under the same category we have for Quarter 3 2021 (when the Act was passed) to Quarter 1 2023 (the most recently available statistics), we should be left with approximately 5 cases of perjury. Of course, this number should be higher if the Act has been

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succesful.

However, nearly one year after its enactment, the Department of Justice released its annual report on the Act. In the report, it was revealed that as of the 24th of May 2022, there had been no prosecutions under the Act. Thus, in reality, the Act has been in active use by the courts since, at best, late May 2022.

Revising our numbers, at least 3 recorded cases of perjury before the courts would be necessary to at least match the pre-enactment rate. According to the Court’s website, approximately 22 cases from the 24th of May 2022 to the 21st of September 2023 were conducted, in which perjury was mentioned in some form. Of these, the perjury allegations were disproven or dismissed in 17 cases. 4 of the cases only mention perjury in a passing manner. 1 case explicitly mentions a case of perjury at trial. Of these 22 cases, only 1 mentions the Act at all with the perjury charge dismissed in that case.

It would seem that the Act, as of September 2023, has

failed to see an increase in the number of prosecutions or perjury. As there is only a singular mention of the Act in recent cases before the courts, it also seems possible that the aspiration of facilitating the investigation of cases of perjury has fallen through.

Whether or not it has had a deterring effect is unclear.

Currently, there is no manner in which such a figure could be calculated from the available statistics.

However, the fact that the number of offences under the category of “Perverting the Course of Justice” has been increasing steadily could indicate its failure in this regard.

While these numbers have not been confirmed by any government body and the CSO remains hesitant in its publication of crime statistics, it seems unlikely that they are far off. While it may be premature to come to a definitive conclusion, it seems that perjury remains a thorn in the side of the legal system. We do not live in a ‘high trust’ society and, as desirable as it would be to live in a society governed by truth, it is sadly a desire currently in the realm of fantasy.

The Irish Government is Failing in its Duty to Defend the Nation

By Fiachra Mooney, JS Law and Business The past few years have been tumultuous ones for Ireland’s Defence Forces. While they have seen successes such as the seizure of the drug-laden cargo ship the MV Matthew off the south-east coast, such victories are marred by the fact that the Defence Forces have to conduct these operations with perhaps more exposure to risk than would otherwise be necessary if more resources were available to them.

The Defence Forces continue to haemorrhage highly skilled personnel to the private sector, and are being forced to cancel patrols and deployments on a regular basis.

While not legally binding, it is a generally accepted principle of nation states that a government has a duty to protect its citizens. Although this may be controversially used to justify militarism, it nonetheless has remained a tenet of civilization for hundreds of years. The sad truth is that the history of humanity is defined by conflict, a trend that shows no sign of abating.

That sad reality must be met with another stark one.

Put frankly, Ireland has next to no defence capabilities. Ireland has traditionally maintained a modest military force, apt for our size, means, and our general remoteness from potential warzones.

However, the Defence Forces have been whittled down to the point where they now are unable to meet the limited tasks expected of them. Recently, they were forced to halt the training of just one Maltese cadet, because of a lack of officers to carry out the training.

Capabilities, and the Lack Thereof None of the Naval Service’s Patrol ships can be considered warships. Built to commercial standards, these vessels lack the radar or missile systems that have characterised modern warships since the 1950s.

Despite the modest Irish fleet of now just six ships (down from nine following the decommissioning of three ships on a single day in July 2022, including the flagship LÉ Eithne) the Naval Service currently has only enough personnel to man two of these vessels.

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Ireland’s enormous area of maritime responsibility, which now includes many of Europe’s vital subsea internet cables, than there were in the 1970s.

The Air Corps is also struggling with an acute lack of manpower and modern equipment. During the fall of Afghanistan, and the ensuing scrambling evacuation by western governments, the Air Corps had to rely on the assistance of other European militaries to rescue Irish citizens due to its severely limited long-range airlift capabilities. The Air Corps has no combat aircraft, and the Pilatus PC-9 trainers that it uses have a top speed below that of a WWII era Supermarine Spitfire. In terms of fighter capabilities, it could be argued that the Air Corps is worse equipped now than it was in the 1950s.

In practice this means that the Air Corps is unlikely to be able to deal with something akin to a 9/11-style takeover of a commercial aircraft. Former Fianna Fáil Minister Willie O’Dea has recently confirmed a longheld theory that the Government is in a “secret” agreement with the Royal Air Force (RAF) to assist in protecting Irish airspaces. RAF Typhoons have been used to deter and interdict Russian strategic bombers which have flown close to Irish airspace in recent years (which Irish authorities are not even able to detect when they turn their transponders off due to the repeated delays in procuring a primary radar capability). A legal challenge has been brought by Senator Gerard Craughwell, which aims to officially recognise the arrangement's existence and subsequently challenge it on the grounds of unlawfulness and unconstitutionality.

Legal Failing Apart from the alleged failure of the state to meet the aforementioned moral obligation, it could also be argued that the Government has a legal imperative to maintain a force capable of providing a credible defence of the nation and its people.

The minimum manpower requirement of the Defence Forces was set at 9,500 personnel in the 2015 White Paper on Defence (and maintained in the 2019 Update). However, current figures stand at 7,987.

Although the White Paper cannot be said to carry enough legal weight to compel the Government to take more drastic action, it does show that the Government is falling short of its own policy aims.

The question could be raised, as to whether the Minister for Defence and by extension, the Government, have failed to comply with legislation that compels the Minister to take proper actions in defence of the nation. The issue of the exercise of powers which have been granted to a Minister is a matter which has been much discussed in courts across common law jurisdictions. In Padfield v Minister of Agriculture, Fisheries and Food, the UK House of Lords found that the discretion granted to the Minister of Agriculture under Section 19(3)(b) of the Agricultural Marketing Act 1958, was not an absolute one, and that “Parliament must have conferred the discretion with the intention that it be used to promote the policy and objects of the Act.” Section 30(2) of the Defence Act 1954, expanding on Section 29 of the Defence Forces (Temporary Provisions) Act 1923, lists the powers proscribed to the Minister of Defence to equip the Defence Forces.

It also confers on the Minister the ability to do “all such other things as seem to him necessary for the efficient military defence of the State.” While the current levels of expenditure are likely to be excused by their “efficient” nature (and courts tend to be reluctant to intervene in monetary matters), it would be hard to contend that successive Governments have done all that is necessary for the defence of the State.

[T]he Government continues to drag its heels on Defence.

This state of affairs persists even while the Government itself makes clear that “[t]he security of the State and its citizens is a primary responsibility of government,” and that “[p]roviding for the military defence of the State’s territory is a fundamental security requirement.” Yet despite this, the Government continues to drag its heels on Defence.

Though the Government has committed to moving to “Level of Ambition 2,” as set out by the Commission on the Defence Forces, increasing defence capabilities will be challenging without significant investment in modern equipment. It will also require increasing the pay and improving the working conditions of skilled staff, in order to prevent the ongoing exodus to the private sector.

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Reasons for the Ambivalence A factor sometimes pointed to in explaining the Government’s ambivalence towards Defence is the existence of tension between the Defence Forces and civil servants in the Department of Defence and Department of Finance. This perceived animosity and mistrust, noted in Conor Gallagher’s new book, “Is Ireland Neutral? The Many Myths of Irish Neutrality,” is believed to stem from the Army Mutiny of 1924. Since then, it is widely contended that the aforementioned departments have remained wary of giving the military too much power, lest a similar event were to arise again.

However, there is no doubt that the greatest reason for this ambivalence is political expediency. Shortfalls in defence expenditure usually only become apparent during times of major conflict or deployment. The impacts of inflation, and the crises in housing and the health service are seen and felt by the public on a daily basis. In an increasingly polarised world, with new and evolving threats in the cyber security sphere, Ireland can no longer ignore its own defence. The Government can no longer ignore those that take an oath to defend us.

Assessing the Charities (Amendment) Bill 2022

By Aoife Doheny, JS Law

The charitable and not-for-profit sector have undergone major legislative changes in the last 15 years. The latest is set to be introduced soon, with the Government looking to pass the Charities (Amendment) Bill 2022 shortly. This article will provide a brief summary of the gaps in the existing legislation on the charities sector before evaluating the changes that will be introduced by the 2022 Bill.

The Charities Act 2009: What Was Missing?

The Charities Act 2009 outlines the criteria an organisation must meet in order to attain charitable status. Notably, to be a charity, an organisation must have a “charitable purpose” as defined by the 2009 Act: it must be dedicated to either (i) the prevention or relief of poverty or economic hardship; (ii) the advancement of education; (iii) the advancement of religion; or (iv) any other purpose that is of benefit to the community. Furthermore, the purpose must be of “public benefit”. This means that the purpose itself must be of public character and must impact a nonnegligible portion of the population. In order to obtain charitable status, an organisation must be devoted exclusively to a charitable purpose as defined by the 2009 Act. It should be stressed that great importance is attached to having charitable status. It denotes a certain level of trustworthiness which carries weight with the general

public and third parties. It also creates tax implications and affects a body’s financial status by determining whether the donating public has access to its financial records.

Because of the importance of having charitable status, one of the major criticisms levelled at the 2009 Act was its failure to include the advancement of human rights as a charitable purpose. It is likely that this omission was intended to reflect what the drafters considered to be the common law position at the time, as outlined in the English case of McGovern v Attorney General, which centred around an Amnesty International trust. A trust occurs where money is held by one person (the trustee) on behalf of another (the beneficiary), with the expectation that the trustee will act in accordance with their duties to handle the trust assets in a way which is true to the trust’s purpose and in good faith. In this particular case, Amnesty International were acting as trustees of assets being held for the purpose of freeing political prisoners.

Their claim that the trust was charitable was denied

by Slade J on the basis that its purpose was political rather than charitable in nature.

Put simply, a political purpose is considered by the courts to be any goal that seeks to bring about change in law or government policy. Such purposes cannot be charitable; they can only be ancillary to the charitable

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aims of an organisation.

This blanket ban on political purposes being charitable has attracted strong criticism from academics. The advancement of human rights contains a strong humanitarian aspect, which makes the legislature’s refusal to separate it from political purposes seem like a simplistic mischaracterisation.

Furthermore, the 2009 Act omits the promotion of sport as a charitable purpose. On this issue, Professor Hilary Biehler of Trinity College Dublin has cited the judiciary of England and Wales as having a “more progressive and pragmatic approach” than the Irish courts. In the UK, the promotion of amateur sport is codified in section 3(1)(g) of the Charities Act 2011 as a charitable purpose. In Ireland, no such provision exists. This is disappointing given the popularity of the GAA (Gaelic Athletic Association) in this country. There is a strong link between GAA sports and Irish national identity, and sporting activity in general arguably provides great wellness benefits to the general public.

[H]umanitarian aid should not be ignored just because the context in which it is needed is politically charged.

The broadening of the definition of charitable purposes would have major public policy impacts, since it would more accurately reflect current societal opinions on both human rights and sport. Especially in the case of human rights, current conflicts such as the Israel-Palestine war demonstrate that humanitarian aid should not be ignored just because the context in which it is needed is politically charged. As the world changes around us, our legislation should be updated to keep up.

The Charities (Amendment) Bill 2022: what will change?

Human Rights One major change to be introduced by the 2022 Bill is the inclusion of the advancement of human rights as a charitable purpose. According to the General Scheme of the Bill, the aim of this addition is to bring Ireland in line with other common law jurisdictions.

However, this still leaves the Irish position on the matter less open than that of countries like Australia, where the old blanket ban precluding charitable trusts from having political purposes was entirely lifted in the case of Aid/Watch.

Photo courtesy of Elena Hernandez, SS Law and Political Science

In a Report on the 2022 Bill, the Oireachtas Joint Committee on Social Protection, Community and Rural Development and the Islands noted its worry that not enough of a distinction would be made in the Bill between organisations who promote exclusively political causes and those who use political advocacy to achieve legitimate charitable aims.

This fear appears to be unfounded. The legislative test set out in the 2009 Act clearly states that (among other things) a charity may only have a charitable purpose as defined by the Act itself. Seeing as Ireland has not followed in Australia’s Aid/Watch footsteps, the Charities Regulator would not be able to deem an organisation a charity if it does not meet the criteria of section 2 of the 2009 Act; solely political purposes would not meet these criteria.

Other changes The Bill also aims to introduce greater transparency requirements in financial accounting for the charitable sector, since charities will have to adhere to the accounting standards of the Charities Statement of Recommended Practices. There is, however, an exemption from this requirement for accounts with a turnover of less than €250,000—an increase on the previous threshold of €100,000—which will be welcomed by smaller charities. All charities with financial statements over a specified threshold will also be subject to a statutory audit.

The 2022 Bill clarifies that company secretaries and secretaries to the charitable boards (who hold no other office in the charity) are not automatically deemed trustees. This clarification of the definition of “charitable trustees” has been welcomed by major law firms.

Codification of trustee duties will also be introduced in the 2022 Bill. Given that the 2009 Act does not specify the legal form a charity should take, charitable trustees may have common law duties, statutory duties under the Companies Act 2014, or both.

Introducing a set of codified duties specific to the charitable sector will help the Charities Regulator exercise its enforcement powers in relation to these obligations. It will also help trustees themselves to identify their duties, by gathering all the relevant obligations cohesively in a single statute, rather than leaving trustees to search across scattered historical case law. Some notable duties include the duty to act in good faith, the avoidance of conflicts of interest, and the requirement to exercise due care, skill, and 29 | The Eagle Volume 10 Issue 1

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diligence.

Finally, under the 2022 Bill any amendment to a charity’s constitution, no matter how minor, will require approval from the Charities Regulator. It has been argued that this will unnecessarily increase the Charities Regulator’s workload and generally create more administrative burdens for the sector. It is true that the scope of this provision could have been narrowed in order to eliminate smaller, more technical changes from being caught by it. However, it would arguably be more of a challenge for the legislature to determine the threshold after which a change could be deemed “important” enough to require approval. It is therefore wise to err on the side of maximum transparency in this instance.

What is missing?

There is no provision made for sport as a charitable purpose under the 2022 Bill, which is a disappointing decision, given the status of GAA in Ireland and the desire to preserve it as an element of Irish heritage.

Sport in general has been cited many times as a highly

effective way to improve the general health and wellbeing of a population. It therefore seems to meet the 2009 Act’s charitable purpose criteria quite easily.

Mason Hayes & Curran and The Wheel have pointed out that certain definitions are missing in the 2009 Act, including the terms “operate” and “carrying on activities” in relation to the requirements for charitable status. This has not been addressed in the 2022 Bill, which means that uncertainty around these definitions will continue.

Conclusion The 2022 Bill brings about the welcome introduction of human rights as a charitable purpose into Irish law.

The debate around the original omission prompts us to reflect on the nature of political purposes, and whether judges have (or ought to have) a role in defining the nature of this category. Finally, the Bill introduces some clarity around financial regulatory requirements for charities. While there is no set date for the introduction of the Bill, it is set to provide new and helpful guidance for the charitable and not-forprofit sector in the near future.

Photo courtesy of Olivia O’Keane, SS BESS

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The Dilemmas and Difficulties of the Concept of Parent Alienation in Irish Family Law

By Isobel Houlihan, JS Law Parent Alienation (PA) is a purported psychological phenomenon, which, since 2019, has become more commonplace in Ireland's discussion of familial breakdown. PA alleges the manipulation of a child by one parent, with the intent to end that child’s contact with the other parent. Definitions vary regarding the alienated parent’s required degree of fault in the alienation. Additionally, opinions vary as to the correct remedy for PA, with organisations such as Parental Alienation Awareness Association proposing its criminalisation.

Ireland’s judiciary has only just begun to grapple with the concept of PA as divorce was legalised at a far later stage in this jurisdiction than in many others. In one recent High Court discussion of PA, found in L.H. v Family and Child Agency, Simons J held that allegations concerning PA should be raised in the District Court rather than as a judicial review. This normally highlights an important hurdle to dissecting the concept of PA: the majority of family law cases are unreported and held ‘in-camera’ (the press and public being excluded as spectators) in lower courts, such as the District Court. Thus, the manner in which PA allegations are raised in court remains unclear unless they are reported in High Court judgments.

Nonetheless, PA allegations are increasingly being made and Ireland’s judiciary must address this concept carefully or else it risks causing harm to victims of familial abuse. This article will present four arguments as to why PA must be firmly rejected as a valid legal concept by Ireland’s judiciary and legislature.

Rejection By The Legal and Medical Community PA was first introduced as a concept in case law 200 years ago in England in the case of The King v De Manneville. However, it became widely discussed in American family law due to the contribution of child psychologist, Richard Gardner, in his 1992 book “The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals”. Gardner claimed that children often falsely accuse their fathers of

acting abusively towards them, and are especially prone to make allegations of child sexual abuse. He argued that this phenomenon is attributable to a form of PA, exercised by one parent via “brainwashing” tactics. In his view, this manipulation was incentivised by the adversarial nature of Common Law courts.

Gardner’s “Parent Alienation Syndrome” has been consistently rejected in the legal and medical fields. In the medical community, PA Syndrome was definitively rejected after an extensive review for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) in 2012. The DSM-5 is a publication of the American Psychiatric Association and provides psychiatrists and medical practitioners with information on more than 70 disorders deriving from the research and scientific evidence of over 200 subject-matter experts.

Additionally, the World Health Organisation (WHO) has refused to use the term, and regard it as a legal concept rather than a valid medical concept. The WHO instead utilises the phrase “caregiver-child relationship problem” to describe similar sentiments in the International Classification of Diseases 11 (ICD-11). The ICD-11 is the global standard for recording health information and causes of death. The ICD is developed and annually updated by the WHO. In the Common Law world, many judiciaries have declined to adopt PA as a legal concept. In the English case of Re C, McFarlane J emphasised that regardless of whether a diagnosable syndrome exists or not, the courts should focus on identifying “alienating behaviour” and its impact on the childparent relationship, rather than determining whether a label such as PA can be applied. This is arguably the best approach as it does not deny the existence of faultless parental estrangement but also focuses on the impact of parental behaviours on children. This prevents the judiciary from being unnecessarily perplexed and entrenched by defining and identifying instances of PA. It is also a satisfactory alternative to

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outrightly prohibiting discussions of PA in family courts, which is appropriate for the District Court rather than judicial review, as held in L.H. v Family and Child Agency.

Lack of Utility Despite the concept of PA receiving consistent rejection, it has recently started to gain the attention of the Irish media, driven by a rise in allegations within the lower courts and the advocacy efforts of organisations such as Alienated Children First and Parent Alienation Ireland. Following a period of public consultation, the Department of Justice published two papers on PA in May 2023. The Department concluded that regardless of the medical validity of PA, the term is ultimately unhelpful because “alienating behaviours” are captured by statute under the offence of “emotional abuse.”

While PA, as a word, might have utility in a social context to refer to a general behavioural pattern of a parent, it most certainly is not more useful than the legal concept of “emotional abuse,” which is criminalised under the Child Care Act 1991.

“Emotional abuse” more effectively encapsulates the harmful alienating behaviours that the courts should be focusing on. In fact, many experts testifying before the District Court, in their reports, refer to alleged PA under the term “emotional abuse.”

Furthermore, PA is not a good descriptor for the vast majority of strained parent-child relationships. The Department of Justice paper emphasised that many self-reported cases arising from the public consultation merely represented challenging relationships between parent and child and that PA was assumed as the cause by the parents despite other factors being at play. Thus, the concept in most circumstances did not accurately describe the relationship of the parent and child; the framing of the challenges of parent-child relationships during marital breakdown as PA does not reflect the complexities of such relationships. A concept that perpetuates simplistic understandings of a parent-child relationship should not be adopted. It is for these reasons that arguably that as a legal concept, PA is unhelpful and unnecessary due to its lack of utility as a concept.

PA and Concerns Around the False Testimony of

Children Gardner’s concerns surrounding the possibility of PA being used to extract false testimony from children are completely unfounded in this jurisdiction. In Ireland, under the Criminal Evidence Act 1992 s.14(a), children who testify and are cross-examined during a trial are required to be visible to the judge and jury at all times, even if they are not physically present in the court. This rule applies regardless of whether the testimony is made through a live video-link, a prerecording, through an intermediary, or with the aid of a screen. Thus, if a child was being unduly influenced, this would be clear to the trial judge, jury, child psychologists and other expert witnesses.

Furthermore, under the Criminal Evidence Act 1992 s.16(1)(b), cross-examination of child witnesses must be carried out with the child present in the courtroom, which arguably allays any further concerns regarding undue influence. In Ireland, such actions were recently explicitly criminalised under Criminal Justice (Perjury and Related Offences) Act 2021 s.3 and is known as the offence of “subornation of perjury”.

Therefore, any extreme concerns about such actions and false testimony are unfounded, and the utilisation of PA to combat such false testimony is unnecessary.

The Gendered Nature of PA Despite consistent medical rejection, PA has persisted in family courts across Common Law jurisdictions. It has been weaponised, particularly by Men’s Rights Activists (MRAs), to the detriment of the women and children involved in coercive control, domestic violence, and divorce cases as studied by Dr. Adrienne Barnett in “A Genealogy of Hostility: Parental Alienation in England and Wales'' and Dr. Joan Meier in “Denial of Family Violence in Court: An Empirical Analysis and Path Forward for Family Law” (US perspective). This is further illustrated by reviewing English and Welsh case law from the early 2000s, in which groups, such as the Fathers’ Rights Movement and Families Need Fathers played a key role in PA-related litigation. In Common Law jurisdictions other than Ireland, allegations of PA have been persuasive in returning children to the custody of their fathers where strong evidence of abuse exists. This arguably harms the well-being of the children involved through devaluing the testimony of the child. Furthermore, it creates a strong likelihood that the child will be put back in the custody of the potentially abusive father as PA, by its

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nature, suggests that there are no valid reasons for children to end contact with a parent. This silences child victims by assuming that contact ought to be maintained with both parents at the expense of the needs of the child. This is deeply problematic as if such a concept is accepted in Ireland it would consistently allow custody of children by potentially abusive parents.

The Department of Justice research paper affirmed that allegations of PA are disproportionately made by men. This is especially clear in domestic violence and coercive control cases. However, the paper neglected to explore the politically charged nature of the term and its consistent use by Men’s Rights Activists.

Introducing a politically-charged term such as PA, as a legal condition or a criminal offence, in the absence of sound sociological and psychological studies would harm the best interests of the child, as enshrined under Article 42A of the Constitution, and would turn family courts into a den of vicious hearsay and

flagrantly untrue allegations. Such an outcome would hurt the most vulnerable in these proceedings without necessarily yielding any positive outcome. In the rare cases in which parental estrangement without fault occurs, the estranged parent would be best served by instead pursuing an action under the Child Care Act 1991 alleging emotional abuse by the other parent.

Conclusion Parent Alienation is a manipulative buzzword that has been primarily used to successfully thwart and discredit the real testimonies of children and women.

PA as a psychological condition or syndrome has been rejected by leading medical and health organisations. As a concept it lacks utility for two reasons: it does not accurately describe challenging parent-child relations in marital breakdown, and the alienating behaviours of PA are already criminalised under statute. It is for these reasons that it should be firmly rejected as a valid legal concept in Irish legislation and case law.

Post-Pandemic Prisons: Irish Penal Reform Regressing?

By Jacob Hudson, SS Law and Political Science and Deputy Editor October 2023 marks a decade since the Oireachtas Joint Committee on Justice, Defence, and Equality issued their landmark Report on Penal Reform in Ireland. The report, amongst other things, indicated cross-party support for the reduction of the prison population as the solution to the overcrowding crisis and the poor conditions that have plagued Irish prisons. Despite the ambitious aspirations set out by the Joint Committee in 2013, several annual reports released separately in October 2023 by the Office of the Inspector of Prisons (OIP), the Irish Prison Service (IPS), and the Probation Service all paint a bleak picture of the conditions facing the 4,612 people behind bars (according to figures released by the IPS on September 1st 2023). Meanwhile, 8 out of 12 of Ireland’s prisons are either at or over full capacity.

The Irish prison system, with its capacity of 4,411 places, is bursting at the seams.

The first unannounced inspection in years occurred at

Dublin’s Mountjoy Prison in November and December 2022. The foreword of the OIP’s Annual Report 2022, written by Chief Inspector Mark Kelly, details the “shock” inspectors felt when they discovered the conditions of detention in Mountjoy, describing them as “degrading”. The 2022 inspection uncovered that 38 prisoners per day were sleeping on mattresses wedged up against unpartitioned toilets in cells designed for single occupancy. Mountjoy, however, is not unique in its overcrowding. Kelly, in a letter to the Minister for Justice in July 2023, similarly described the conditions in Ireland’s largest remand prison, Cloverhill, as being “degrading,” with a third of prisoners sleeping in overcrowded cells. Kelly also noted that the cells in Cloverhill were often “intolerably hot” with temperatures rising above 27 degrees during the summer months. Furthermore, the Irish Independent has detailed a policy known as “pack ‘em, stack ‘em and rack ‘em,’” which operates in a number of prisons. Under this policy bunk beds

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are installed in single occupancy cells to deal with overcrowding.

it is clear that these “shocking conditions” can lead to an increase in mental health issues amongst inmates.

Notwithstanding the possibilities of human rights violations under both the Constitution and the European Convention on Human Rights as a result of overcrowding, the poor conditions in prisons have a damaging effect on prison culture. President of the Prison Officers Association, Tony Power, has described overcrowding as “a perfect atmosphere for the bully to thrive.” Violence is increasing in Irish prisons. Assaults on prison staff increased by 46 per cent in 2022 with a 52 per cent rise in prisoner-onprisoner attacks. Prisoners who have requested additional protection for their own safety, often due to gang-related grievances inside the prison walls, are locked up for 23 hours a day. Coupling this isolation with overcrowded cells where inmates sleep on mattresses wedged up against open sanitation facilities, it is clear that these “shocking conditions” can lead to an increase in mental health issues amongst inmates.

The end of the Covid-19 pandemic restrictions has been a factor in this increased overcrowding in prisons. The prison population fell during the pandemic due to the postponing of court cases, as well the early release of 400 convicts which aimed to facilitate social distancing. However, the IPS’s Annual Report 2022 details a 12 per cent rise in people being sent to prison last year, as well as a 20 per cent rise in the last 3 years. This is despite the 2013 “cross-party endorsed” Oireachtas Committee on Justice report which called for a reduction of the prison population by a third. But as Saoirse Brady, Executive Director of the Irish Penal Reform Trust (IPRT), conveys: “It’s all very well having written policy in place, but it’s the implementation of policy that really matters.”

Another concerning element that may be contributing to the problem is the type of sentences that courts are increasingly handing down. Statistics supplied by the IPS in 2022 show that 74 per cent of committals were for sentences which lasted less than 12 months. Ivana

Bacik TD, chairing the All-Party Oireachtas Group on Penal Reform meeting on October 18, 2023, argued that these short sentences, often for minor offences, are “an ineffective method for rehabilitation and reform of prisoners.” She states that “expert evidence” suggests that prison should be a sanction of lastresort, and that greater reliance should be placed on community-based sanctions to achieve more effective rehabilitation and reduce re-offending rates.” Saoirse Brady, during the same deliberations, questioned whether it is necessary at all for those not yet convicted of a crime to be remanded in custody. The IPRT and Deputy Bacik argue that keeping these cohorts out of prison would do much to alleviate the crisis of overcrowding.

While advocates of penal reform point to the Community Service Orders (CSOs) as a key solution to diverting minor offenders away from overcrowded prisons, the Government seems to be stepping away from its own policy in this matter. The Department of Justice, which has been under the control of Fine Gael for the past 12 years, seems to be focusing on increased prison capacity to the opposition of the IPRT, which remains concerned by the “further risks of overcrowding due to over reliance on imprisonment, particularly for short sentences.”

Budget 2024 commits to providing 400 new prison spaces over the next 5 years with substantial capital investment projects to take place at Cloverhill, Castlerea, Midlands, and Mountjoy Prisons. This reverts back to the policy of the Fianna Fáil Governments of the 2000s who wished to build a new ‘super-prison’ at the Thornton Hall site in north Dublin, which was to house 2,300 inmates. Despite €80 million being spent on both the purchasing and developing of the land, the 2008 financial crisis put an end to the scheme. The land is currently being rented to a local cattle farmer in the area for €200 per month.

Former Minister for Justice (the original architect of the project), Senator Michael McDowell, has outlined his wishes for the Thornton Hall project to be revived.

But as Saoirse Brady states, long-term capital investment projects “will do little to address the current overcrowding crisis today and stop anyone sleeping on a mattress this week.”

In contrast to the Government’s capital investment plans, increasing CSOs for minor offences offers a more cost-effective and progressive approach to penal 35 | The Eagle Volume 10 Issue 1

National Law and Policy

reform in Ireland. The Probation Service’s Annual Report 2022 details that 174,287 hours of community service work in lieu of 566 years in prison were completed last year. This resulted in €2 million worth of benefit for communities across Ireland. Despite this, the report flagged a decrease in the use of CSOs in favour of short prison sentences by Irish courts, representing regression in penal reform. Research has shown that short sentences increase recidivism amongst offenders. CSOs can have the effect of benefitting community projects nationwide while saving the State an average of €97,000 per prisoner incarcerated per year.

While the latest annual reports by the OIP, IPS, and the Probation Service make for depressing reading for advocates for penal reform, progress has been made through the Minister for Justice’s assurance that the Inspection of Places of Detention Bill (ratifying the Optional Protocol UN Convention against Torture) is expected to be published shortly. This legislation would replace the OIP with the ‘Office of the

Inspectorate of Places of Detention,’ expanding its remit to Garda stations, courts, and prison transfers.

This would ensure higher standards for the conditions that offenders or the accused face in environments outside of prison.

Post-pandemic prisons are becoming the increasingly ugly face of the Irish justice system. The destiny of Ireland’s human rights record is in the hands of the Government. The State must act urgently to relieve overcrowding in Irish prisons. We cannot wait for long-term capital investment projects that ignore the issues of recidivism. At the very least, the calls of exGovernor of Mountjoy John Lonergan and Chief Inspector of the OIP Mark Kelly to institute an enforceable ceiling of capacity for the IPS must be realised. Ultimately, this is a matter of human rights.

As Bishop Martin Hayes said after a recent visit to Mountjoy Prison, “while the role of prison is to punish those who commit crime, I feel strongly that we have a responsibility to uphold the human dignity of those held [there].”

Photo courtesy of Emma Bowie, L.L.B. Graduand

36 | The Eagle Volume 10 Issue 1

Photo courtesy of Alex Coghlan, SS Law and Political Science