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David Wacks talks about social media’s influence on the hiring process INSIDE THIS ISSUE Erasmus Catch: Emily Dunne talks about her experience in Groningen Legal Consequences to the Repeal of the 8th Amendment: Tasin Islam gives us an overview of what repealing the 8th Amendment would mean Social Section: Nadine Fitzpatrick brings us up to date with all of the events that took place this semester The Eagle Gazette Volume 4 Issue 2 ¡ 1


Foreword All good things come to an end, and as we wrap up this year, we say goodbye to the fourth years. This year has been chock-full of events in Trinity organised by our wonderful societies, and this semester in particular has been eventful with its late February blizzard. So it is only appropriate that this issue reflects the multitude of events, both academic and non-academic that have taken place in Trinity. It has been an absolute pleasure to be on The Eagle all these years, and I am confident that next year’s Editor-in-Chief, Mary Murphy, and Deputy Editor, Caoimhe Daly, will bring The Eagle to new heights. Of course The Eagle would not be possible without support from the Law School, especially Dr. David Fennelly and Dr. Oran Doyle. Also a huge thank you to our very kind sponsors Philip Lee Solicitors. On behalf of the editorial board, I welcome you to Volume 4 Issue 2 of The Eagle: Trinity Law Gazette! Nina Milosavljevic

Editor-in-Chief Nina Milosavljevic Deputy Editor Diarmuid O’hUallachain Editorial Board Eoin Hennessy Hristina Ignatova Beth Devlin Caoimhe Daly Kate Lenihan Aisling Marren Mary Murphy Suzanne Flynn Avril Holton Jack Counihan Nadine Fitzpatrick Peter Kelly Orla Murnaghan Photographer Alexander Brüggener Designer Sulla Montes

2 · The Eagle Gazette Volume 4 Issue 1

Contents A New Way Forward: The Case for

03

Environmental Courts in Ireland Suspended Declarations of Invalidity

04

in Ireland Following NHV Does college prepare us for the real world?

06

Ireland’s Post-Brexit Relationship with the EU

07

Legal Consequences of a Repeal to the 8th Amendment:

08

An Overview Legally Green: Where Environmentalism and

09

the Law Combine ‘The Swedish Model:’ Examining Prostitution Law in Sweden

10

Erasmus: Groningen, The Netherlands

12

Why is the Irish Government Cagey in Regards to the

12

Regulation of Mixed Martial Arts? The Impact of Social Media on Hiring Processes

13

The Social Section 15

All the opinions expressed are that of the authors and not of The Eagle.


A New Way Forward: The Case for Environmental Courts in Ireland MARY MURPHY JS LAW

As the evidence for anthropogenic environmental destruction mounts, so does citizen awareness. In late 2017, the High Court recognised a constitutional right to environmental protection. There is therefore an increasingly urgent need for an effective and accessible framework for citizen action in environmental matters. To an Irish audience, the suggestion of establishing a new court or tribunal to deal exclusively with environmental cases may seem rather radical. While it has been quietly and sporadically discussed by Irish commentators, it has never gained much traction. However, there are over a thousand environmental courts and tribunals (ECTs) in operation across forty four different jurisdictions, and their popularity is only predicted to grow. The ECT seems to provide the solution to countless issues that have traditionally plagued environmental litigation. Environmental litigation, a relatively recent legal phenomenon, is unsuited to standard court procedure. Issues with regard standing, statutes of limitations, multi-party actions, costs, and appropriate remedies often occur. For example, in seeking judicial review in EU law, a complainant must establish that they are the sole party affected by the measure they challenge, that it is of ‘individual and direct concern’ to them. But by their very nature, the adverse effects of environmental destruction are diffuse. This is a particularly acute example of a more general issue, where under traditional rules of standing it can be difficult to establish a personal interest in an environmental case. And unfortunately, it is an issue courts do not seem too interested in resolving. In the 2017 case of Grace and Sweetman v An Bórd Pleanála, for example, the central question of the second-named applicant’s standing went unaddressed. According to the Supreme Court, the first-named applicant having standing made it not worth deciding, despite the case having been referred to them on a point of public importance. A specialised tribunal would overcome such procedural obstacles and uncertainties, by tailoring its own rules of procedure

to the particularities of environmental matters. Another thorn in the environmental litigant’s side is the technical nature of the law, often leading to overly cautious judges. However, in many of the jurisdictions which have adopted ECTs, the specialist judges have technical expertise and training to overcome this. ECTs also tend to enjoy the more general benefits associated with tribunals, namely lower costs, swifter processing of cases, and increased public confidence due to more apparent judicial oversight. An ongoing project named Greening Justice tracks the trends and general developments of ECTs across the world, and has compiled characteristics often shared by the most successful ECTs. These include independence from government; high public visibility; broad standing rules; effective and adaptive enforcement tools; continuous training of judges; options for alternative dispute resolution such as mediation; and expediency. It is noteworthy that on one of the occasions that there was a recommendation for the establishment of an ECT in an Irish context, it was issued by the Department of Housing, Planning, and Local Government. This was on foot of public consultation asking how to effectively honour Article 9 of the Aarhus Convention, which requires signatory states such as Ireland to guarantee access to justice in environmental matters. It is even more unclear, then, why the possibility of an ECT has not been more seriously entertained by the Irish government. The establishment of ECTs in other jurisdictions is not often met with much resistance. The criticisms attracted by ECTs are usually those levelled against the establishment of government agencies in general— difficulties of deciding which cases were sufficiently focused on the environment to appear before the tribunal; the possibility of insufficient amounts of relevant litigation to warrant a specialised body; the initial expense of establishing the tribunal; or the risk of marginalisation from the general court system and therefore general judicial procedure. It must also be noted that an ECT could not work as a panacea. To fully guarantee access to justice, their The Eagle Gazette Volume 4 Issue 2 · 3


establishment would have to be accompanied by significant reform in other areas. It is possible that Ireland’s distance from these reforms contributes to why we in particular do not seem to have given serious credence to the possibility of ECTs, while other jurisdictions, in their dozens, pursue their establishment. For example, serious obstacles are caused by the fact that civil legal aid is not available in environmental cases, and there is an uncertainty surrounding costs. There is also an absence of any court procedure allowing for multi-party actions to the extent of constituting a de facto prohibition, a feature which distinguishes Ireland from many other common law jurisdictions which have embraced some form of multi-party actions. These actions are of particular use to environmental litigants given the above mentioned diffuse effects of environmental dangers, and the then Supreme Court Judge Susan Denham noted that it is the most disadvantaged in society who would benefit from their introduction. It is possible that the Multi-Party Actions Bill 2017, a private member’s bill entering committee stage, could reform this procedural oversight.

popularity, it is perhaps time for Ireland to give serious thought to this new approach.

Despite the issues that may linger for environmental litigants after the establishment of an ECT, such a development would surely be a step, or even a leap, in the right direction. With their increasing global

Suspended Declarations of Invalidity in Ireland Following NHV RONAN MCGURRIN SF LAW AND POLITICS

The Supreme Court decision in NHV v Minister for Justice and Equality (sometimes cited as NVH) declared last May that the absolute ban on the right to work for asylum seekers was “in principle” unconstitutional. In postponing its official declaration of unconstitutionality until 9 February 2018, the Court’s decision was significant not only for its impact in the human rights sphere. It is also notable for its fledgling quasi-endorsement, or adaptation, of suspended declarations of invalidity. The suspended declaration of invalidity is a remedy for unconstitutional legislation which is prevalent in the jurisprudence of Canada and South Africa, but has not been formally recognised as a remedy in Ireland. It occurs where a court postpones a formal declaration that a law is unconstitutional, so as to 4 · The Eagle Gazette Volume 4 Issue 1

give the legislature time to address the issue. In this country we have relied instead on what Mr Justice Seamus Henchy memorably termed the “judicial death certificate” in the 1982 case of Murphy v Attorney General: a nuclear option for the courts whereby a finding of unconstitutionality leads to an immediate declaration of invalidity of the impugned provision(s). The decision of the Court on 30 May 2017 to declare the ban unconstitutional “in principle”, but to defer its official declaration so as to give the government time to make the necessary preparations, thus represents a new departure in this jurisdiction. This is notwithstanding the subsequently introduced legislation, which has recognised the right of asylum seekers to seek employment but currently makes it extremely difficult for them to actually find it. In the past, the immediacy of the traditional nuclear option has served to tie the judiciary’s hands on a number of occasions where legislation was found


to be unconstitutional. The possibility of releasing a number of sex offenders from prison, in the 2006 cases of CC v Ireland and A v Governor of Arbour Hill Prison, and the temporary legalisation of controlled substances on foot of Bederev v Ireland in 2015, are perhaps the two most well-known recent examples of this. These decisions, which resulted in public embarrassment for the courts, came about in part because there was no readily available way of allowing for substitutive legislation to be drafted before the relevant impugned legislation was struck out as unconstitutional.

and may end up as a formally recognised remedy for unconstitutional legislation in this country’s jurisprudence in the coming years.

The remedy introduced in NHV seems to indicate an evolving attitude of the Court that thought-out legislation is more desirable than rushed legislation. While this is all the more important when dealing with a topic as sensitive and loaded as the socioeconomic rights of non-citizens, it has raised concerns regarding the separation of powers among some commentators, who argue that the Supreme Court may be exceeding its authority by declining to immediately invalidate laws it finds to be repugnant to the Constitution. The Supreme Court ultimately made its declaration of invalidity on 9 February of this year in under five minutes, without making mention of the novel approach it had taken. The Court also steered clear of involving itself in any oversight of the replacement scheme, presumably as a nod towards Article 15.2.1. It therefore remains to be seen how much the courts will develop the remedy in NHV going forward. Mr Justice Brian Walsh in De Búrca v Attorney General [1976] IR 38 said that consequences of invalidity should never affect judges in deciding upon the constitutionality of laws. However, it was acknowledged in A v Governor of Arbour Hill Prison that judges’ decisions can be affected by a mindfulness of the political and legal impact that invoking the nuclear option on legislation would cause. The Chief Justice, Mr Justice Frank Clarke, noted in an RTE Radio 1 interview with Marian Finucane on 30 September 2017 that judges are not “blank sheets of paper” and are alert to the politicisation and social pressure which can envelop cases. The approach taken in NHV, therefore, may simply have been an attempt by the Supreme Court to put another option on the table, in order to avoid being backed into a corner as has happened in the past. Whatever the motivations, suspended declarations of invalidity have become very relevant in the constitutional law of Ireland since the NHV decision, The Eagle Gazette Volume 4 Issue 2 · 5


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Does college prepare us for the real world? LOUISE LAWLESS SS LAW AND GERMAN

In September 2017 a Forbes article asked “Does college prepare students for the real world?”, the students asked replied with a resounding ‘no’, adding that ,for most people, “the traditional college education doesn’t give you experience with workplace skills.” Having participated in a novel college module that allowed to me to develop these skills, I wondered was the same true for law schools around the country. Did studying a law degree provide enough opportunity for practical learning? A final year NUIM student laments the lack of opportunity for a work-placement, “it would have been really beneficial as it would give you a firsthand experience and proper insight into what it’s actually like working in a legal firm on a daily basis.” Emma Brady, of Law and German in Trinity 6 · The Eagle Gazette Volume 4 Issue 1

College, acknowledges both the benefit and burden of the omission of an obligatory clinical placement, “It would have been ideal to have the framework of placement provided within the scope of the course, but equally it fosters independence when you have to strive for your own objectives and your own work experiences”. Although most, if not all colleges offer a “Mooting” module during one of their years of study, an experience which “was fantastic. Really helped my communication skills, gave […] confidence speaking publicly too”, according to Sally Ann Malone, a final year Law and French student in NUIG, it seems as though a solitary module over a four-year degree is not substantial enough. Others have fallen victim to the failures of their law schools attempts at providing non-academic learning environments, as evinced by Roger Berkeley, a Law and Business student in University College Dublin, who recalls a “rather strange team assignment from an EU law module […] where we had a team of 10


producing a 1,500-word essay!” Students who don’t study “Pure Law” have the advantage of being able to tap into practical education through further study of their other avenue. Berkeley, found that he “experienced this [non- academic areas of learning such as public speaking, teamwork etc.] more in the Business side of [his] degree”. Colleges do their best to suggest careers and futures to students, stretching outside the remit of solely academic spheres; providing graduate and career fairs throughout the year, as well as a week in Careers of Law in Galway and a mentoring programme in Trinity College. Nonetheless, for anyone not veering towards a traditional career, it can be more than a little disheartening. Emma Brady confesses the challenge on entering Law school with optimism, “Call me idealistic, but every law student begins with rose tinted glasses: how can we change the world? How can we support human rights? By the end of law school, almost all of us are more than a little cynical.” For the Maynooth student, her optimism and certainty stems from her year abroad “I do feel prepared [for a law career] but I don’t think I would be [..] had I not went on my study abroad.” She continued to say, that it was primarily due to her exposure to other countries laws while away, that she realised that she aspired “to be an International Criminal Justice and Human Rights lawyer” in the future. Although the academic pursuit of law led to some disappointments, studying it as a double major was seen as advantageous and a “benefit” by students. Yet, as Berkeley explains, doing “Law And” has meant that he had to take fewer law subjects but that “on the whole, it’s been a help.” Similarly studying German meant sacrificing the opportunity to further studies of the Irish law and, “although learning about culture and history broadens the mind and stretches your societal understanding, it does little to provide a solid foundation for a legal career”, admits Brady. Despite its issues, all law students asked felt optimistic for their futures. The consensus was that is a great entrance to any other avenue worth pursuing, whether that be legal or otherwise, local, or international. The Law’s reputation as “a good stable course” precedes it, and Malone feels that it has “opened up [her] mind to different horizons and happenings across the globe. [And that it] lays the foundations for a fulfilling career”. Although there is room for improvement in Ireland’s teaching of the law, there have been definitive strides in the past couple of decades and it is no doubt a topic that will continue to catch the attention of both students and

academic scholars.

Ireland’s Post-Brexit Relationship with the EU DARRAGH MCDONAGH SF LAW

Brexit presents many problems for Ireland and issues such as its economic impact and the possibility of a border are among the government’s immediate concerns. But another question Brexit raises is the direction of the EU itself. Ireland is largely a proEuropean nation. We have seen first-hand the economic benefits of being a member of the EU. While I would largely disagree with Nigel Farage, when he spoke at the Hist recently about the Irish electorate’s enthusiasm for Irexit, he may not be entirely misguided in sensing that all is not well in Ireland and the EU’s marriage. I do not believe that the majority here envisage Macron-style integration: a harmonised tax regime; a European finance minister; and reforms to the governance of the EU, which would see national power diminish. With Macron pushing for this radical change in the EU, while obdurate Britain depart, Ireland can no longer sit on the fence. We saw Britain attract condemnation for regressive stances around further integration and sensitivity about loss of sovereignty, but I think the Irish government may have partially welcomed this reluctance for ever-closer union. Ireland harped on about the European vision, while happily relying on Britain’s resistance to the expanding remit of the European Commission and the European Court of Justice. For example, we opted out of the Schengen area and security and justice co-operation. Whether we do or do not want an ever-closer union, we need to speak up for ourselves. We need to have a real discussion about the EU’s benefits and drawbacks and make an informed choice. We’ve lost our cover with Brexit and now we have to stand up and be heard. The Eagle Gazette Volume 4 Issue 2 · 7


Legal Consequences of a Repeal to the 8th Amendment: An on the 8th Amendment. Tentatively planned for the 25th May, the referendum will provide a useful Overview TASIN ISLAM JF LAW

public barometer to test the support for the current abortion regime within Ireland, and a popular mandate to the democratically-elected Oireachtas to recreate provisions for abortions in the case of a successful repeal.

One of the most contentious political and legal issues facing Irish society today is the 8th Amendment to the Irish Constitution. Guaranteeing the life of the unborn foetus during pregnancy, the amendment was passed on foot of a public uproar contending that ‘on demand’ abortion would soon be provided unless explicit constitutional protection was provided for.

If the 8th Amendment is repealed, it will not have immediate effect on the abortion scheme in Ireland. The current law, The Protection of Life During Pregnancy Act, still stands. However, there will be immediate manoeuvring as the Government will immediately initiate a new scheme for the provision of abortion within Ireland.

Today, Ireland has one of the most restrictive abortion regimes in the West, permitting abortion in only the most exceptional circumstances.

In the event of a repeal, the current trajectory is to implement the 36th Amendment to the Irish Constitution. The precise wording of this amendment has been finalised in recent weeks. Short and succinct, it states: “[p]rovision may be made by law for the regulation of termination of pregnancies.”

With current opinion polls indicating broad support for a repeal of the 8th Amendment, it is important to consider the current law on abortion and how a repeal to the 8th Amendment will alter the abortion scheme in Ireland. The 8th Amendment to the Irish Constitution was passed in September 1983. Many Irish pro-life campaigners had become increasingly worried by developments within the United States. Following the landmark US Supreme Court decision in Roe v Wade, extending the right of privacy to abortion, campaigners within Ireland successfully advocated for a referendum to add an amendment to the Irish Constitution to protect the life of the unborn foetus. The Protection of Life During Pregnancy Act 2013 is principally responsible for the regulation of abortion within Ireland. Influenced by the Irish Supreme Court decision in X, there are three circumstances in which abortion can be provided in Ireland: when a mother’s life is in immediate danger from the pregnancy; when there is a risk of loss of life due to physical illnesses; and when there is a credible likelihood of suicide arising from a pregnancy. There is no provision in Ireland for abortion in circumstances of rape, incest, or fatal foetal abnormality. However, due to substantial public pressure, highprofile cases of maternal death, an increasingly liberalised society, and a Citizen’s Assembly that voted in favour of expanding abortion law, the Government of Ireland has proposed a referendum 8 · The Eagle Gazette Volume 4 Issue 1

The amendment grants exclusive authority to the Oireachtas in legislating on the matter of abortion. Abortion will thus be regulated by a democraticallyelected legislature, a welcome move that should adequately represent the sentiment of the Irish people. This will allow the Oireachtas a certain flexibility to adapt to developing popular opinion, providing a solution to the current anachronistic system. The amendment may protect the Oireachtas from potential constitutional litigation and the Supreme Court finding abortion legislation unconstitutional. In the past, The Supreme Court has proved reluctant to intrude upon the jurisdiction of the legislature, as this may breach the delicate balance of separation of powers honoured by the tripartite system of government. Similar to how the 8th amendment limited the powers of the Oireachtas to legislate on providing abortion, the 36th amendment may similarly restrict the power of the Supreme Court to overrule abortion regulation. Thus, legislation subsequent to a repeal will provide the Oireachtas with certainty and parity in providing for abortion services. In the event of a repeal, Minister for Health Simon Harris has stated the proposed approach is to provide a 12-week limit for the provision of abortion in any potential circumstances. This is a significant departure from the status quo, as under the current regime abortions are only available under a strict


set of circumstances. The proposed legislation will radically alter the accessibility of abortion services within Ireland, though some provisions are expected to remain, such as the ability of physicians and nurses to conscientiously object to providing abortion services to patients. However, questions are still raised about the future of the proposed legislation. A salient concern is to what extent, if any, the legislation shall provide for abortions after twelve weeks. It may be that abortion shall be authorised after this date subject to certain requirements. Or perhaps abortion will be highly restricted, subject to exceptional circumstances after this cut-off date. It is yet to be seen if it will bear similarity to the current regime, or whether a greater range of limited circumstances will be provided for.

dramatically overruled international environmental agreements that the Dutch government had previously signed up to. The desire to take on elite powers who contribute to environmental catastrophe was echoed in the US in January. New York Mayor, Bill de Blasio, announced that New York City will be suing five major oil companies for their contribution to climate change and will be seeking compensation for the costs New York will face in response to these problems.

Minister Harris is set to release a policy paper relating to a proposed abortion bill in the upcoming weeks. This will provide greater clarity on the provisions of abortion post-repeal.

Legally Green: Where Environmentalism and the Law Combine SCOTT MURPHY JS LAW AND POLITICS

A new trend has recently emerged in environmental law. Environmental groups have begun to take multinational fossil fuel companies and national governments to court for their contribution to climate change. Something even more incredible is that the environmental groups are winning. The most high-profile example of this phenomenon is undoubtedly the case of Urgenda v The Netherlands. Urgenda, a Dutch environmental group, succeeded in their legal challenge against the Dutch state for failing to effectively tackle climate change. Their argument lay in tort law. Urgenda claimed that the Dutch state had been negligent in failing to tackle climate change, and thus had breached their duty of care to uphold the well-being and livelihood of Dutch citizens. After succeeding in this claim, the Dutch government is now obliged before 2020 to limit its greenhouse gas emissions to 25% below pre-1990 levels. This ruling

In Ireland, the push for environmental justice through the legal system is being led by Cork-based group Friends of the Irish Environment (FIE). In November, following a case brought to the courts by FIE, Mr Justice Barrett recognised for the first time a constitutional right of Irish citizens to an environment that upholds health and well-being. He stated that, “a right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights,” before declaring, “it is not so utopian a right that it can never be enforced.” It remains to be seen just how this constitutional right can be applied within the Irish legal framework. The urge for environmental justice has also spread to the Irish political sphere. In February of this year, Bríd Smith’s bill to ban the granting of new licences for fossil fuel exploration in Irish waters passed the first stage in the Dáil. This was in the face of strong opposition from Fine Gael and climate changedenier Michael Healy-Rae. An Taoiseach Leo Varadkar’s comments on this issue have been notably hypocritical. In January of this year, in a speech delivered to the European Parliament, Varadkar declared that, “We are a laggard. I am not proud of Ireland’s performance on climate change. We need to do a lot more... There’s The Eagle Gazette Volume 4 Issue 2 · 9


lots of things we intend to do”. Although Varadkar may not be proud of our lacklustre environmental record, he seems to be completely reluctant to do anything about it. This was certainly evidenced by his refusal to support Bríd Smith’s aforementioned bill, which received passionate support from scientists, environmental groups and opposition parties. Varadkar’s hypocrisy is a common theme of his leadership. In June 2017, Ireland became one of only four European countries to ban on land fracking; a highlycondemned process of extracting natural gas from the ground which is destructive to local ecosystems and has been shown to release carcinogenic materials into the air. Fine Gael ministers triumphed in their achievement, hailing the ‘new politics’ of Leo Varadkar’s government for the achievement. Only a week later, however, the Irish government gave permission to oil company Providence Resources to drill for oil in the Porcupine Basin off the coast of Kerry. Ireland’s abysmal environmental record was once again exposed in a report released by the CCPI (Climate Change Performance Index). This report detailed the efforts of 56 countries worldwide in their efforts to tackle climate change. The CCPI gave each country a ranking from ‘very high’ to ‘very low’, depending on their attempts to address climate change. Ireland was one of only three countries in Europe to be given the ranking of ‘very low’, the others being Turkey and Russia. Worldwide, we rank alongside Saudi Arabia, Iran and Kazakhstan among others in the ‘very low’ category. It is increasingly clear that we no longer have to rely on apocalyptic horror stories to see the effects of climate change. In October, Hurricane Ophelia took the lives of three Irish citizens and caused an estimated €1 billion in damages in Ireland. The relationship between this kind of activity and climate change is undeniable and extreme weather events like Hurricane Ophelia will only become more commonplace in years to come. The struggle for environmental justice will go on, but now environmental groups and activists are using the legal and political system in this fight. Despite stubborn opposition from billionaire fossil fuel conglomerates and crony capitalist politicians, people are fighting back now more than ever. This area of law will certainly be one of the most important and captivating legal and political issues in the coming years. 10 · The Eagle Gazette Volume 4 Issue 1

‘The Swedish Model:’ Examining Prostitution Law in Sweden ORLA MURNAGHAN JF LAW AND POLITICS

Prostitution is, incredibly, regarded as the oldest profession in the world. Whereas in the past, the public regarded the matter with complete apathy, today it is an issue which has divided opinions legally, ethically and morally. Countries have followed different paths in terms of laying down the law on such practices - but where prostitution is concerned, it is argued that Sweden has taken the spotlight on this international stage. In the Middle Ages, sex outside of marriage was criminalised in Sweden. In accordance with the archaic punitive code, Kyrkoplikt, the Church disciplined those who performed such heinous practices, with pillorying and whipping if they failed to pay their fines. The earliest formal law banning prostitution came in the form of the Civil Code of 1734. Some women without formal documentation of a legal profession or income could even be arrested and sent to the women’s’ prison, Långholmens spinnhus, to prevent them from undertaking such work. In 1812, a new law was introduced permitting the forced medical examination of people suspected to be carrying sexually-transmitted diseases. It was mostly used on prostitutes in the Swedish cities. Despite the efforts of the counter group, Svenska Federationen, to have this degrading law repealed, this practise persisted and it would be over one hundred years before the Lex Veneris Act of 1918 formally abolished these forced medical examinations. However, the existing vagrancy laws, despite using gender-neutral terminology in legislation, continued to coerce, constrain and target women under the Swedish Sonderwerg (Special Way) which, in practice, permitted their arrests for prostitution. This contentious issue continued to divide the nation, but a clear prejudice against prostitution was evident in the Swedish body of legislation, which defined citizenship as including normative behaviour, “honest labour” and the practice of folkhygien (good personal hygiene.) In 1981, following significant movements to advance


the status of women, a national investigation into prostitution was undertaken, and its results proved controversial. It was found that prostitution was not an issue of gender equality. Between 1983 and 1993 over fifty bills were proposed to deal with the controversy, the majority proposing to criminalise the purchase of sex. In 1998 the debate came to a head when Hans Göran Persson and the Swedish Social Democrats assumed power, with an impressive forty-one percent of seats in parliament being chaired by women. This feminist government passed a bill on 5 February 1998, known as the Kvinnofrid Law, or the Violence Against Women Act 1998. This formally criminalised the purchase, but not the sale, of sex in 1999. It was the first country in Europe to implement such a law. At the time, there was fierce opposition to this proposal. Over seventy percent of Swedes were against the criminalisation of purchasing sex, and all seven other political parties were similarly inclined. But the government saw this as a revolutionary measure, firm in the belief that the vast majority of prostitutes were forced into such labour due to poverty or addiction. Moreover, this was also a major concern for immigrant women, in particular those from the Baltics and South Asia, many of whom were often subjected to sex slavery. Plenty of fears were kindled with the passing of this new law. It led to a widening chasm in the already varied perspectives of prostitution, creating two starkly opposing viewpoints. The first argument leans towards the notion that prostitution is not always forced. Some saw it as further oppression, rather than liberation of women, and an infringement on their bodily autonomy and the right to work in the sex trade. The counter argument others suggested was analogous to that of the governments’. Alongside these deeply-trenched divisions, came the numerous questions that nobody could answer. What would happen when the sex industry was forced underground? Would the rates of domestic violence rise with pent-up sexual frustration? Would any assistance be offered to those still employed in prostitution? Only time would tell.

in 2009, and Northern Ireland following suit in 2015. Rape and domestic violence rates have not increased in Sweden since this law was passed. Likewise, the rates of violence against prostitutes has not risen. No prostitutes were murdered in 2015, unlike in Germany, where the sale of sex is legal, and 70 prostitutes were murdered in the exact same year. The enforcement of this law has not increased policing costs, despite creating a subdivision in the force that deals specifically with this issue. Additionally, studies have indicated that the demand for sex is falling- the figures showing that demand has dropped from 13.6% of men in 1996, to 7.4% in 2014. This is in blatant contrast to the United States, where it is estimated that one in every five men have purchased sex. Public attitudes have also shifted dramatically. If arrested, most convicts are so ashamed they will plead guilty rather than face prosecution in court. It is worth noting also that these fines for purchasing sex are based on income. If the person is unemployed, the fine is roughly $400, and for those with a steady income, they must pay fifty days’ worth of their wage. Yet despite these many improvements, prostitution persists, and often goes unhidden from the policing authorities. Online advertising has become the new network for the sex industry, which police units track vigilantly to prosecute those dealing in the trade. Human trafficking is still a disturbing reality, many female slaves hailing from Nigeria and Lithuania. Immigrants have no right to access state funding to enable them to break free from the weighted chains of prostitution. Certainly, the system is flawed. As technology evolves, the intricacy of combating the issues surrounding prostitution increases drastically. A huge potential flaw is that Swedish men will become sex tourists. Sweden has no extraterritorial law to prosecute native men for sex acts committed abroad. In addition, counselling for sex purchasers is only voluntary, not obligatory. It is complex, challenging obstacles like these that are slowly causing the public psyche to ebb towards outlawing sex completely.

Nineteen years on, and arguments against the criminalisation of the purchase of sex have completely subsisted. The Swedish model has become something of a trailblazer in the sphere of regulating prostitution, with Norway adopting a similar model The Eagle Gazette Volume 4 Issue 2 · 11


Erasmus: Groningen, The Netherlands EMILY DUNNE JS LAW

When I first applied to do my Erasmus in Groningen, I didn’t know much about the city. In fact, I had never even heard of it! However, within days, I had fallen in love with its quaint narrow streets, (I had also fallen off my bike a few times as a result). The city is constantly buzzing with students cycling around, whether they are rushing to get to a lecture or just out enjoying the fresh, (and sometimes bitterly cold), Dutch weather. Divided by a canal that runs through it, and decorated with lots of beautiful gothic architecture, this picturesque city provides plenty of opportunity for a great Instagram travel post and still amazes me with its beauty 7 months on. As Groningen is host to two popular Universities, (University of Groningen and Hanze University of Applied Sciences), it’s population is predominantly students, which explains the young, vibrant atmosphere that can be felt wherever you go in the city. This, in turn, means that the nightlife is another major asset of the city as crowds religiously frequent the pubs and clubs most nights of the week. That being said, there is also lots to do during the day if you have given up on the library, like going to the markets that fill the main squares, paying a visit to the museum, or indulging in a bit of retail therapy in the many shops Groningen has to offer. College life here has proven to be quite different from back home in Dublin. As most of the modules I have chosen are especially designed for Erasmus students, class sizes are much smaller and are comprised of students from all around the world. In addition to this, the required mark to pass is a daunting 6/10, which stands in stark contrast to the 40% pass rate I had become so accustomed to in Trinity. However, the academic schedule makes it easier to stay on top of your work; the college year is made up of two semesters, each broken into two 6-week blocks, both concluding with a study week and set of exams. In this way, material is examined when it is fresh in the minds of students, making exams a lot less stressful, especially when compared to the mountain of summer exams Trinity students usually face at the end of the academic year. On a more negative note, the duration of lectures and seminars is two hours, which definitely puts the attention span of many to the test. 12 · The Eagle Gazette Volume 4 Issue 1

Above all, my time as an Erasmus student has been truly defined by my stay in Winschoterdiep; a popular student accommodation complex here in Groningen. It has given me the opportunity to live with young people of all nationalities, which has helped to broaden my knowledge of cultures around the world and further developed my interactive skills. Overall my Groningen experience has been incredible and one that I will remember forever! I would highly recommend it as an Erasmus destination and it’s safe to say that returning home will be a mixed bag of emotions.

Why is the Irish Government Cagey in Regards to the Regulation of Mixed Martial Arts? ROSE LATTIMORE SF LAW

The tragic and untimely death of MMA fighter Joao Carvalho in Dublin during the Total Extreme Fighting Contest on 9th April 2016 highlighted the real need for Ireland to plug the legal vacuum in which the sport of Mixed Martial Arts currently operates in this jurisdiction. The jury of The Joao Carvalho inquest gave its final verdict on the 8th February and their main finding was that Mr. Carvalho’s death was a “misadventure” which occurred due to the culmination of a number of factors and that the best way to avoid a repeat of such an outcome is for the government to endorse a national governing body for MMA in Ireland. The lack of government regulation of MMA has been harshly criticized before. Calls for a national governing body to be recognised are neither novel nor innovative. The increasing popularity of the sport can clearly be seen in the explosion in the number of MMA gyms across the country, as well as in the Irish representation in the highest levels of the sport in the form of Artem Lobov, Joe Duffy, and of course, Conor McGregor. As the status of MMA grows in Ireland, so too does the need for stringent regulation. In May 2016 an Irish Mixed Martial Arts Association (IMMAA) was established in an attempt to fill the void left by the lack of government intervention in the sport. IMMAA President John Kavanagh (Head Coach at SBG Ireland) released a statement in


February 2018 in which he detailed how since Mr. Carvalho’s death “every MMA promoter in Ireland has voluntarily worked to implement IMMAA’s stringent safety protocol” and maintained that the Association has maintained these advanced protocols for the past 18 months, despite not having any legal mandate to do so. Coach Kavanagh strongly asserts that the delay in the official regulation and governance of MMA was in no part due to a reluctance on the side of the industry officials.

The Impact of Social Media on Hiring Processes

If the converse had been the truth, and there had in fact been a continuing disinclination on the part of MMA promoters to step up into the role of regulation, they could be easily forgiven for choosing to leave the formal organisation of the sport in the hands of the government.

Social media’s presence has grown in all facets of life, allowing people to interact in ways not known to previous generations. One consequence of social media is its detrimental effect on human resource management (HRM), as not only can it be used to dispense information, but also to gather it. In considering job applications, employers should proceed with caution by distinguishing social media which is used for private purposes such as Facebook from social media used for professional purposes such as LinkedIn, and respecting the nature of each. While it is asserted here that employers should be extremely reluctant to consult private social media, it is believed that LinkedIn and other public social media should be used in limited circumstances, for instance, to view endorsements or supplementary related information which would assist the screening process.

MMA’s most powerful promotion, the UFC, voluntarily took a stand to clean up the sport in 2015 by beginning a partnership with the United States Anti-Doping Agency (USADA). According to ex-UFC CEO Lorenzo Fertitta, this has directly cost the UFC several million dollars. Indirectly, the USADA partnership has cost the UFC a lot more due to the need to cancel scheduled bouts upon failure of a drug-test (eg: Jon Jones V Daniel Cormier at UFC 200) and also due to long suspensions of some of the UFC’s biggest pay-per-view draws (eg: Chad Mendes). Smaller promotions simply do not have the means or resources to engage with such costly voluntary schemes and while the IMMAA has been successful so far in encouraging Irish MMA promoters to engage with them on a voluntary basis; it appears naïve to believe that an authoritative regulatory body is not required in order to maintain and evolve safety standards within the sport. The reason for the reluctance to regulate MMA in Ireland is unclear. Boxing, which is a key component in the stand-up element of the sport of MMA, enjoys a high level of official regulation and protection. Bord na gCon, the semi-state body charged with regulating and promoting the racing of greyhound dogs in Ireland is a prime example of governmental willingness to engage with unusual sporting activities. While the need for regulation is universal across all sports, the combative nature of MMA heightens its need for clarity, regulation and governance. With the clear guidance arising out of the Joao Carvalho Inquest and the recent announcement of the UFC’s intention to host an event in Dublin at some point in 2018, it would appear that it is high-time to create the legal and regulatory infrastructure required in order to allow the sport of MMA to operate in a safe and entertaining manner.

DAVID WACKS JS LAW AND BUSINESS

Introduction

Ethical Implications When contemplating whether to view an applicant’s private social media without permission, employers must be vigilant and realise the potential long-term pitfalls of doing so. It is advisable that employers have a social media policy which outlines their position regarding social media screening. In the absence of such a policy, companies should notify candidates of their intentions, or better yet, obtaining written consent is recommended. Failing to do so can negatively impact the company’s reputation. Research suggests that when job applicants realise an organisation has viewed their social media profile, they are less likely to perceive the hiring process as fair, regardless of whether they are offered the position. An analogy is frequently presented that online screening “often becomes a fishing expedition unrelated to work issues” and casts doubt on the appearance of being an equal opportunities employer by scrutinising individual past characteristics which may not reflect how the candidate would perform as an employee.

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Legal Implications The current legislative framework regarding social media screening varies significantly in each jurisdiction and the differences internationally regarding practices can place significant burdens, such as knowledge and financial constraints, on international businesses with one centralised HR department responsible for global recruitment. The European Commission has confirmed that from May 2018 new regulations will oblige employers to be honest and transparent about their intentions regarding social media screening. The employer must have a ‘legitimate interest’ in extracting information about the applicant, in case there is evidence of a personality trait that would make them unsuitable for the role. However, the parameters of ‘legitimate interest’ are somewhat ambiguous and could be tailored to apply to suit employers’ circumstances accordingly. Conversely, it is asserted that the incoming legislation will ensure that prospective employees will be informed of social media screening; a change which is long overdue. Disappointingly, the legislation still fails to distinguish between professional and private social media, where it is argued greater protection should be afforded to respect the privacy of the latter. Discrimination One consequence of using social media screening is discrimination jeopardising equal access to employment. Interestingly, LinkedIn has a very limited number of African-American and Hispanic participants and subsequently companies who heavily depend on screening employees using only this site could be accused of discrimination.

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Moreover, a similar argument arises as to applicants who do not engage with social media, both professional and personal, or indeed do so to a very limited, infrequent extent. The ambiguity effect asserts that people prefer options with a known probability over those with an unknown probability and therefore, employers are more likely to select a candidate with a profile of some description over those with none. However, during the screening stage, it is not a case of information asymmetry; as the candidate with no social media presence is not an unknown quantity. The employer has ample resources to engage with in those already submitted by the candidate and should they have any further reasonable requests, they could directly contact the candidate or their reference where appropriate. Conclusion Interestingly, almost forty percent of managers stated that information derived from their social media research influenced their hiring decisions. While social media screening has a predominantly negative effect, it is noteworthy that candidates have been offered jobs due to their social networking profiles reflecting well-roundedness, creativity, displays of awards and looking like the ‘correct fit’. However, a candidate’s application may be rejected due to affinity bias based on their profile picture, the subject matter of their tweets etc. which is a grave cause of concern. A person’s social media platform is part of their identity and autonomy. Hence, it is imperative that employers recognise and respect rather than exploit this feature.


The Social Section Note from the Social Editor Socially it’s been a super busy Hilary term in Trinity, with many exciting law events taking place. Trinity FLAC hosted a variety of talks, including an interesting discussion on the “Gig economy” with Dr Sinéad Pembroke, Oonagh Buckley of the WRC and our very own Professor Des Ryan. A Disability Rights talk was very well received by all who attended, as was the talk on the Irish Prison System. The Karen Kenny Memorial Moot Court Competition was won by Senior Fresh students Bessy Zhu and Rebecca Ross. Well done to the 2017/2018 FLAC Committee for organising such a diverse range of events this semester. Law Soc had a great term, topped off by their trip to Madrid. The McCann Fitzgerald Natalie Forde Maidens Competition final was an event to be remembered, chaired by Professor Neville Cox and enjoyed by all. Congratulations to runner-up Peter Benson, and overall winner Jack Synnott. Law Day 2018 was held on February 22nd, with a variety of events taking place, including a five-a-side soccer match and ‘Pie the Lecturers’. All proceeds from the events and bucket collecting went to the Capuchin Day Centre for Homelessness. Huge kudos to all who participated and donated. The iconic Justice Hedigan spoke to the society on March 15th, he was one of the most eagerly anticipated speakers of the year.

Looking for Law-ve This year’s RAG Week brought the members of Trinity FLAC to the Pav in the search for love, or at the very least the possibility of a smoothie date. Looking for Law-ve had law students in second, third and fourth year battling it out for the chance at a blind date, with hosts Alan Eustace and Chloe O’Reilly helping them along the way. Chairperson of FLAC, Paul Carey, brought each person into the room blindfolded, while their

favourite song played, including Scooter and the Pussycat Dolls. All in the name of charity, contestants answered questions about burrito orders, Dublin nightclubs, and karaoke. Jack, Sorcha and Ruairí had a great opportunity to pick their matches. Highlights of the night included one of the hosts forgetting that for Blind Date to work, it’s best to not name the contestants. Undoubtedly the best part of the evening was the blindfolded Sorcha Ryder unwittingly choosing her own boyfriend, Conor Nevin, for the blind date - having been tricked by a fake Canadian accent! The event raised a substantial sum for the proceeds of RAG week, which are split amongst all the charitable societies in Trinity. A special thank you must go to the organisers of the event, to the audience members for supporting the cause, but most importantly to the contestants themselves! By Chloe O’Reilly

Trinity FLAC: Current Reforms in Irish Drug Policy In the last year Ireland has witnessed a move towards greater support for the decriminalisation of drugs and has undergone steps to reform the country’s approach to drug abuse, such as the publication of a new health-policy response paper, entitled ‘Reducing Harm, Supporting Recovery’. On the 13th of November, Trinity FLAC was lucky enough to host three decorated speakers to discuss these upcoming reforms in Irish drug policy. Marcus Keane, our first speaker, is currently a barrister and legal adviser to the Ana Liffey Drugs Project and granted us a valuable legal insight into the current issues regarding Ireland’s prohibition on possession of drugs for personal use. Mr Keane gave tentative support of the concept of decriminalisation and suggested a move towards the Portuguese model for drug policy. In the 1990s, Portugal experienced a rapid increase in non-medical drug use causing them, in 2009, to decriminalise ‘consumption, acquisition and possession of drugs’ for personal use. The ‘Dissuasion Commissions’ were set up across the country; they dealt with possession as an administrative offence and differential between addicted and non-addicted offenders. Almost a decade after its original implementation, the The Eagle Gazette Volume 4 Issue 2 · 15


Portuguese model has emerged as a resounding success. Portugal now has the second lowest death rate from illegal drugs in Europe after experiencing one of the worst rates during prohibition. While suggesting that Ireland adopt this approach, Keane acknowledged that such a move would have to be accompanied by a fierce education campaign; that would prevent the a false impression that the Irish government, in decriminalising drugs, would be endorsing their use. At the other end of the spectrum, Bernadette (‘Bernie’) McDonnell warned about the potential dangers of the move toward decriminalisation. McDonnell is the current CEO of ‘Community Awareness Drugs’ and a strong advocate for the continued prohibition of all drugs. McDonnell warned of the effect that decriminalisation could have, and suggested that the communicative value of prohibition should not be undervalued. She argued that the current laws do in fact have a strong deterrent effect and to remove them would be counterproductive. Lastly, Senator Aodhan O’Riordain spoke about the bill that he and Senator Lynn Ruane introduce into the Oireachtas in 2017. The Controlled Drugs and Harm Reduction Bill purports to legalise personal use under a certain quantity and establishes ‘Drug Dissuasion Services’ that are almost identical to the ‘Dissuasion Commissions’ provided under the Portuguese model. In this case, the board comprises five members of government officials and experts. A case officer makes a recommendation to put the accused in a drug awareness, rehabilitation or community engagement programme. The Bill also creates a more clear distinction between possession for personal use and possession for sale and supply by identifying clear quantities. Possession must be over a certain amount before any action can be taken and it is only upon the third repeated offence that a sentence of up to six months may be imposed. This area of law will likely be subject to substantial change in the near future, and the speakers provided a valuable insight into the viewpoints that will be shaping new and upcoming policy. Regardless of the conflicting views that were presented, it became clear that Irish drug policy was going to be a topic that will dominate public debate in the months to come. By Celia Reynolds

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Trinity FLAC: Disability Rights Panel On 12 March, Trinity FLAC hosted a panel discussion on the rights of people with disabilities in Ireland, with Dr Meredith Raley (researcher with the Disability Federation of Ireland), Julie Helen and Paul Alford of Inclusion Ireland, and Professor Mark Bell, Regius Professor of Laws at Trinity and an expert in equality law. Fittingly, the timing of the talk coincided with the Oireachtas finally ratifying the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Dr Raley began by explaining the significance of the UNCRPD as an instrument of international law. Of course, in theory existing treaties on human rights generally also applied to people with disabilities; however, in practice, governments leant towards a charitable, paternalistic model of provision for people with disabilities. UNCRPD did not create new rights, but rather, explained how to apply existing rights in a practical way in the disability context. She noted Ireland’s long delay between signing up to the UNCRPD and actually taking steps to ratify the Convention (although this is not unusual with regards to international human rights treaties). The State repeatedly said this delay was necessary, as various legislative reforms were required before ratification in order to make Irish law compliant with UNCRPD standards; Dr Raley highlighted the Criminal Law (Sexual Offences) Act 2017, the yet-uncommenced Assisted Decision Making Act 2015 which will replace the wards of court system, and the Disability (Misc Provisions) Bill 2016, still stuck at Committee stage, as examples. Even though the Convention is now ratified, unlike most other EU countries, Ireland did not sign up to the optional protocol enabling people to take individual complaints. The impact of ratification will therefore mainly be felt in Ireland’s obligation to periodically report to the relevant UN Committee and the domestic monitoring lead by the Irish Human Rights and Equality Commission and including civil society organisations and the National Disability Authority. The speakers from Inclusion Ireland (the national association for people with an intellectual disability) were Julie Helen, an advocacy project worker, and Paul Alford, a self-advocacy worker. The two had witnessed the recent ratification of UNCRPD and noted that Inclusion Ireland produces a ‘Plain English’ handout on UNCRPD to make sure as many people as possible can access information about


their rights. Paul Alford emphasised the important protections of the right to live independently in the community and to choose where, with whom and how to live. This right should not be constrained by economic considerations; the government has committed to move away from congregated settings by 2021. This right was of particular importance to him in his lifelong struggle to live independently as a person with an intellectual disability. He recounted the story of his childhood and early life in institutions, where there was a lack of respect for the autonomy of residents and very little provision for them to make meaningful choices about their lives. He acted as an informal advocate for fellow residents less able to speak up and complain about this, acting as a thorn in the side of management and successfully exposing some of the most egregious instances of infantilisation and mistreatment of residents. Eventually, after many years of effort and after finally obtaining the appropriate supports, he found a place to live independently and since then has travelled abroad alone, learned to read and write in his 40s, taken up a job with Inclusion Ireland organising self-advocacy for people with intellectual disabilities, and even had a book written about his life. Lastly, Professor Mark Bell of the Law School gave a presentation on disability rights in the workplace. He outlined the key duties of employers towards people with disabilities under the Employment Equality Acts: non-discrimination, protection from harassment, providing reasonable accommodation for different needs, and promoting equality. The obligation to provide ‘reasonable accommodation’ is only activated where the employer knows or ought to know of the employee’s need, but there are procedural duties upon the employer to inquire into their employees’ needs. The obligation does not apply where the appropriate measure would place a ‘disproportionate burden’ on the employer. Professor Bell noted that in the recent case of Nano Nagle School v Daly, the Court of Appeal has now clarified that appropriate measures can include redistribution of tasks but not the removal of a task which is ‘main duty or essential function of position’. In the Q&A afterwards, one audience member asked how the issues arising from the discussion applied within Trinity. Dr Raley noted that the UNCRPD model could be incorporated into the college’s own structure as a matter of good governance; in any case the Convention applies to Trinity in its capacity as a public body. Julie Helen praised the Certificate for Contemporary Living offered in Trinity as a positive

step and noted its significance for older people who may not have had a chance to access higher level education previously. However, it is still segregated from ‘mainstream’ education and she said she hoped in the future providing education to those with and without intellectual disabilities alongside each other will be explored. By Blánaid ni Bhraonáin

Access to Justice Beyond Borders On November 29th ELSA TCD celebrated ELSA Day. This year’s theme was ‘Access to Justice Beyond Borders’. ELSA welcomed Louise O’Connor of Irish Rule of Law International to speak on the joint initiative of the Law Society of Ireland and The Bar of Ireland dedicated to promoting the rule of law in developing countries. Ms O’Connor spoke on their most successful project to date, Malawi. The Malawi programme was set up in 2011 to address the extreme capacity challenges faced in the criminal justice sector. It aims to improve access to justice for unrepresented vulnerable persons. As part of this programme Irish lawyers volunteer to act alongside the institutional actors in the criminal justice system of Malawi. The Malawi prison system has been strangled by an excessive use of pre-trial detention and the lack of a comprehensive legal aid system, resulting in overcrowding in Malawi’s prison systems, with remand times spanning from months to sometimes years.She also highlighted how juveniles and adult offenders were often imprisoned alongside one another, with children as young as 13 having been found imprisoned alongside adults by IRLI volunteers. The poor of Malawi face physical, financial and language barriers to legal aid. Most live in remote rural areas, with an income of $1 per day, and do not speak English – the language of the court. With no representation, vulnerable Malawians are often held in custody for months, or years, until a trial court acquits or sentences him/her. Even at trial injustice may occur as cases can often be decided on outdated law. Only around 12% of Malawi’s population has access to electricity and due to inefficient case management systems it can sometimes take months for rural courts to receive hard copies of statute and cases to be updated on developments. Ms O’Connor finished by outlining how the IRLI The Eagle Gazette Volume 4 Issue 2 · 17


promotes access to justice for the poor. Some of their work involves the training of magistrates, police officers, social workers, advocates and paralegals in human rights and due process, diversion, case management and client care, as well as the protection of children and young offenders who come in conflict with the law. They engage with local traditional leaders, with the support of the Malawi Police Service and Legal Aid Bureau, to facilitate community legal education workshops to inform the broader community about human rights and child protection. A lively Q&A session followed with many in attendance expressing a wish to volunteer at the initiative and questioned how they might get involved. Disappointment was clear when Ms O’Connor informed the crowd that only qualified lawyers would be able to volunteer overseas. However there are times when their overseas volunteers require the support of legal researchers in Ireland. She told those interested to keep an eye on IRLI’s Twitter to discover any such opportunities. By Lorcán Hickey

Trinity FLAC: Gig Economy On 20 March Trinity FLAC held a panel discussion on the ‘Gig Economy’ with Oonagh Buckley, Director-General of the Workplace Relations Commission, Professor Des Ryan of the Law School, and Dr Sinéad Pembroke of TASC (Think-tank for Action on Social Change), an independent body which conducts research into social inequality. The idea of a ‘gig economy’ - an increase in the number of workers earning a living through ‘gig’ opportunities such as those provided by Uber, Deliveroo, etc - is much discussed in the media of late. Oonagh Buckley noted, however, that the Workplace Relations Commission (WRC) had not seen many cases of this type, even though around 90% of their work involves individual complaints and workplace inspections. She sounded a note of caution about jumping to conclusions about the prevalence of ‘gig employment’ in Ireland based solely on trends in the UK and US. The WRC commissioned the ESRI to look at the Irish data and found that there is not much of a ‘gig economy’ per se in Ireland; however, Buckley emphasized that precarious employment more generally is a widespread problem. (This category includes workers on non-permanent 18 · The Eagle Gazette Volume 4 Issue 1

contracts, those whose hours vary unpredictably week to week, etc). Dr Sinéad Pembroke presented some of TASC’s research on the social implications of precarious work. This consisted of around 40 qualitative interviews with those experiencing precarious employment. Predictably enough, the instability and uncertainty of these jobs leads to problems affording healthcare (particularly for those without any entitlement to sick leave) and housing. Participants also complained of social isolation and difficulty planning for the future - both financially (mortgages, pensions etc) and personally (wanting to start a family but not having the necessary stability). Professor Des Ryan noted that the term ‘gig economy’ implies that independent workers are choosing to pick up these extra tasks as a handy way to earn; however, for many, it is more akin to traditional employment - with the terms and conditions of work dictated by the employer- and thus should be regulated as such. He criticized the current Irish binary whereby one is either an employee (a status conferring many rights and entitlements) or an independent contractor (with none), as it fails to mirror ‘the vast heterogeneity of self-employment’. However, he also highlighted the difficulty of regulating the type of precarious employment that seems exploitative or negative, since many possible definitions of ‘gig work’ or ‘precarious work’ could also fit situations such as that of an Irish barrister working at the bar (instability, no security or safety net, constant worry that the work will dry up, etc), though few have suggested that a highly-paid barrister deserves the same protection as the Deliveroo driver. The panellists’ presentations were followed by a lively Q&A. Ryan and Buckley differed on the intermediate category of ‘worker’ arising from recent UK cases. This category would cover some of those currently falling between the definition of an employee and an independent contractor. Ryan welcomed this category as a positive step towards greater protection for certain types of workers - while recognising that many of the legal protections available to employees will not be relevant to ‘non-standard’ types of workers. Buckley, on the other hand, said she feared the downgrading of those currently enjoying the status of employee to second-class ‘workers’ would follow, and argued that the wrangling over who deserves which label would only expand with the addition of more categories. By Blánaid ni Bhraonáin


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The Eagle: Trinity Law Gazette Volume 4 Issue 2  
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