Issuu

100 Years of the Irish State UCD Student Legal Services Journal 2022

The UCD Student Legal Service Student Legal Journal 2022 is kindly supported by:

The Irish Independent The Sunday Independent

Front Cover: Image of Fourt Courts by Darragh Sherwin (2006) Available at: http://www.flickr.com/photos/darragh/253198387

©University College Dublin Student Legal Service 2022

All Enquiries Should be Directed Towards: studentlegalservice@ucd.ie

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

UCD STUDENT LEGAL SERVICE STUDENT LEGAL JOURNAL 2022

EDITORS-IN-CHIEF Jessica Commins and Joseph Boyle

EDITORIAL COMMITTEE Aoife Stewart

Demetra Herdes

Aine Chatterjee

Alysia Cloake

Lisa Owens

Daniel Hanlon

Mollie Breen

Calem Martin

Adam Doyle

Kieran Spencer

Ciara Coughlan

Emily Peters

CONTRIBUTORS Living and Working in Ireland

Ireland and the United Kingdom

Ireland, the European Union and the World

Lisa Owens

Gráinne Popen

Saira Khan

Robert Grendon

Hernan Perez McKay

Lara O’Donohue

Andreena Corrigan

Emily Peters

Jénovie Massala

Adam O’Leary

Roisín McFadden

Kieran Spencer

Mollie Breen

Frances Aketch

Jack McGee

Larisa Mirt

Ayah Abubakar

Eve Reidy

Mollie Downes

Calem Martin

Robert Foyle

Emer Nolan

Ciara Coughlan

Demetra Herdes

Aisling Maloney

Alysia Cloake

TABLE OF CONTENTS

FOREWORD

The Hon. Mr. Justice Donal O’Donnell EDITORS’ FOREWORD

Jessica Commins and Joseph Boyle

LIVING AND WORKING IN IRELAND The Operation of the Dáil Courts in the Years Preceding the Irish Free State

Lisa Owens Ambitions of ‘Legal Independence’ in the Irish Free State

Robert Grendon The Ever-Changing Grounds for Annulment as Antecedent to Irish Legal Change

Andreena Corrigan The Doctrine of Proportionality: An Examination of Constitutional Decomposition by the Irish Judiciary

Adam O’Leary Development of Child Protection Law in Ireland Since the Irish Free State

Mollie Breen 100 Years of Being a Woman in Ireland: From Fighting in the War to Fighting in the Court

Larisa Mirt The Future of Examinership in Ireland: An Analysis of the Evolution of Examinership and its Increased Importance Post COVID-19

Mollie Downes Development of Ireland’s Domestic Violence Law Since the Irish Free State Robert Foyle

The Blurred Lines of Palliative Care: End-of-Life Care in the Absence of Legislative Clarity

Ciara Coughlan The Need for a Constitutional Protection of the Environment

Aisling Maloney

IRELAND AND THE UNITED KINGDOM Labour and Industrial Courts: Different Approaches to Collective Bargaining Rights North and South

Hernan Perez McKay Northern Ireland and Brexit

Gráinne Popen Direct Provision: Comparing Asylum Provisions in Ireland and the United Kingdom from 1922 to Present

Emily Peters Online Hate Speech in Ireland and the United Kingdom

Roisín McFadden Privacy Concerns: The New Strain of Virus During This Fraudster ‘Scamdemic’

Frances Aketch The United Kingdom and Ireland: Nervous Shock and Public Policy

Ayah Abubakar

IRELAND, THE EUROPEAN UNION AND THE WORLD The Evolution of the Right to Religious Freedom of Expression: From Post-Independent 99 Ireland to 2022. Saira Khan The Right to Housing: Ireland and Abroad

105

Lara O’Donohue

‘All the Wrong I Did, I Here Proclaim was Madness’: The Defence of Insanity and its Modern Challenges

111

Jénovie Massala Echoes from Across the Pond: Major US Decisions on Abortion and Their Impact on Ireland

116

Kieran Spencer Civil Forfeiture: Can it be Done Well? A Comparison of Ireland and the United States

122

Jack McGee I’m a Slave for You: Ireland’s Wardship System and A Glimpse into Britney Spears’ Conservatorship

127

Eve Reidy Apple, the ECJ and the OECD: The End of Ireland’s Corporate Tax Regime?

132

Calem Martin How a History of Censorship Shaped Ireland and China’s Initial Approaches to Internet Regulation

137

Emer Nolan Virtual Currencies: Regulation and Risks

142

Demetra Herdes The Powers of the President of the UN Security Council: The Lessons We Can Learn from Ireland’s 2021 Presidency Alysia Cloake

148

FOREWORD

The broad theme of this year’s journal, reflecting on 100 years of the Irish State, from 1922 – 2022, is a particularly appropriate one for a UCD student journal. A large proportion of the generation that built the State from the War of Independence onwards were educated in UCD. In particular, law students like Hugh Kennedy and James Murnaghan found themselves to the forefront of efforts to set the terms upon which Ireland would govern itself, and later were key members of the Supreme Court which did much to establish the importance of the rule of law in the new State. Kennedy and Murnaghan were part of a very talented group in UCD which included James Joyce, in the early part of the 20th century. One of the brightest stars, Tom Kettle wrote in 1905 that UCD was “incontestably… the university college of Ireland”. It might be stretching things unduly to make the same claim for the talented cohort who studied in UCD when I was a student, or even for the authors and editors of the essays which are collected in this journal. But one striking feature that unites the young students of the early 20th century with those of the early 21st century and those in between, is the demonstration of the truth that only some of the education a student receives in university comes in classrooms directly from the teaching staff. A large part of the most valuable education comes from the interaction of students with each other. This student edited and student written journal is a manifestation of that process. It is possible to see in these pages evidence of lively intelligence grappling with disparate issues of law, and writers developing the confidence to form their own opinions and seeking to express them clearly and sometimes forcefully. The authors and editors are to be congratulated. Their work deserves the accolade which has been afforded to the thoughts and ideas of student lawyers in UCD and, indeed, elsewhere for well over a century now: to be read respectfully and thoughtfully, to be tested, challenged and engaged with, and finally applauded.

Donal O’Donnell Chief Justice 28th March 2022

EDITORS’ FOREWORD

A century ago the fledgling Irish Free State emerged from the chaos and division of the War of Independence to begin its life as a newly independent state. This emergence was not easy nor without its controversies, as evidenced by the Civil War which shortly followed. The development of a new Irish legal system, as described by our first two articles written by Lisa Owens and Robert Grendon, highlights that since its inception, a consciousness of the legal system as reflective of the State and its new position on the world stage was apparent to all key players. The Ireland of 2022 is a far cry from the Free State’s inception a century ago, with social mores and values changing relatively quickly in such a short amount of time. Yet to move forward and continue to seek justice, an understanding of what has passed and where our legal system came from is key for all students of Irish law. It is our hope that the SLS Journal 2022 will answer this need. It would be remiss of us to not reference another key centenary this year; the publication of Ulysses by UCD graduate James Joyce. Although the novel is set in 1904, glimpses of the Irish legal system at the time as analysed by our own late alumnus, Judge Adrian Hardiman, demonstrate Joyce's fascination with the operation of the law in the daily lives of the Irish people. Hardiman’s love for the fusion of law and history were a key inspiration for this volume’s theme and we hoped to emulate his skill in this regard. Our contributors have worked to look both forward and back in ascertaining the change that has taken place in Ireland in the past century, to reflect on the successes and failures of how our legal system has developed and responded to a changing world. In ‘Living and Working in Ireland’ our contributors have tackled the key issues affecting the day to day lives of all Irish citizens over the past century including children, women, married couples, migrants and asylum seekers and businesses. In ‘Ireland and the United Kingdom’ our contributors have analysed the development of a special relationship between Ireland and the UK over the past century, giving special attention to the role and significance of Northern Ireland. Concluding this year’s Journal, contributors in ‘Ireland, the European Union and The Word’ paid tribute to Ireland’s growing presence on the international stage, making insightful analysis on areas such the right to housing, criminal law, religious freedoms and Ireland’s role in international institutions such as the United Nations Security Council. 7

We would like to express our gratitude to a number of people whose work and support throughout this project is greatly appreciated. We would like to sincerely thank The Hon. Mr. Justice Donal O’Donnell for writing such a fitting and inspired foreword. We are immensely thankful to The Irish Independent and The Sunday Independent for kindly sponsoring this year’s publication. Everyone involved in The Student Legal Journal, as a voluntary, student-led initiative, really appreciates our sponsors’ generosity in helping this project come to fruition. This year’s edition of the journal would not have been possible without the dedication of the entire Student Legal Service Committee. We extend a special word of thanks to this year’s auditor Hugh Kilgannon and treasurer Emily McCarthy for their constant support and to Aimee Moore for her work in promoting the journal. The UCD Sutherland School of Law and its expert faculty has inspired each contributor to go beyond what has been learned in the classroom. We thank the School of Law for encouraging students to engage with the law outside the formal academic setting in seeking out new ideas, challenging existing viewpoints and proposing solutions to a wide range of issues. We especially thank the Dean, Dr. Niamh Howlin for her kind assistance throughout the project. Finally, we offer our congratulations to the dedicated team of contributors and subeditors on completing this year-long project. From the outset it was important to us to create a welcoming space in which contributors from all stages of their studies felt safe to make mistakes, to voice their opinions and to learn from one another. Through our drop-in sessions with contributors, we felt privileged to see their ideas grow from small sparks of interest to deeply thought-out, well-reasoned arguments. To see our contributors' final articles in print today has been a source of pride for us both and we would like to thank all our contributors and their sub-editors for their tireless work. We may have been the curators but you were the artists and we hope you are as proud as we are of your achievement.

Jessica Commins and Joseph Boyle Editors-in-Chief

LIVING AND WORKING IN IRELAND

Living and Working in Ireland

THE OPERATION OF THE DÁIL COURTS IN THE YEARS PRECEDING THE IRISH FREE STATE Lisa Owens

Introduction The aim of establishing an Irish court system was to render non-violent British administration in Ireland obsolete.1 At the First Annual Convention of the National Council in 1905, Arthur Griffith presented ‘The Sinn Fein Policy’ 2 and asserted that a national court system in Ireland was desirable.3 By 18 June 1919, Dáil Éireann decreed the establishment of National Arbitration Courts. 4 This essay examines how the Arbitration Courts (later renamed the Dáil Courts) became a remarkable rival court system to the British administration. The Dáil Courts operated underground and in arbitrary locations. Although there were many impracticalities hindering how the Dáil Courts operated, this article contends that they were also incredibly efficient at times and carried out the functions of an effective judiciary. Development of the Arbitration Courts The creation of rival governmental agencies has been described as one of the most striking aspects of the Irish Revolutionary movement.5 At a Ministry meeting of 23 June 1919, a committee on the Arbitration Courts was set up. 6 Griffith was the Chair of the Committee, which first met in late July 1919, and established a scheme for how the courts would operate.7 It was agreed the courts would include a Supreme Court with three justices and there would be District Courts ‘with jurisdiction corresponding in area to the County Court Judge’s jurisdiction.’8 Petty Courts would function at a lower level corresponding to Petty Session Districts and a justice would be appointed to each chapel Cahir Davitt, ‘The Civil Jurisdiction of the Courts of Justice of the Irish Republic 1920-1922’ (1968) 3(1) Irish Jurist 112. 2 The Constitution and aims of Sinn Féin printed in The Irish Year Book 1909 , Dublin 1909, pp. 356-359 included the establishment of National Courts of Arbitration. 3 Padraic Colum, ‘Arthur Griffith: Irish Statesman’ (1954) 23(4) The American Scholar 467, 475. 4 J.P Casey, ‘The Genesis of the Dáil Courts’ (1974) 9(2) Irish Jurist 326, 327. 5 Davitt (n 1). 6 Dorothy Macardle, The Irish Republic (paperback edn 1968) 280. 7 Davitt (n 1) 112. 8 Ibid. 1

Living and Working in Ireland area.9 The proposals made by the committee following this initial meeting were somewhat impractical. According to J.P Casey it was a difficult task locating qualified individuals to employ as District Court judges.10 In late August, Griffith submitted the scheme to the Dáil. This resulted in the passing of a decree which stipulated that all justices and registrars of the Supreme Court would be paid.11 However, by October 1919 there was no extensive publicity for the establishment of the Arbitration Courts and the process of initiating proceedings had ‘still not been decided on.’ 12 The Dáil Courts In June 1920, Arbitration Courts dotted around the country were transferred under the direction of Austin Stack, Minister for Home Affairs, and were renamed the ‘Dáil Courts.’13 This system would replace the British Court system to reduce the power of British administration in Ireland. Dáil Court hearings began with the first being held in May 1920 in Ballinrobe Town Hall Co. Mayo.14 In January 1921 Stack issued an official pamphlet bearing on its cover Saorstat na hÉireann, Judiciary, Rules and Forms, Parish and District Courts.15 The Pamphlet declared the establishment of a Supreme Court, District Courts and Parish Courts. Parish Courts Each Catholic area had a Parish Court consisting of three members. 16 No legal qualifications were required to sit on the Parish Court and the Minister could appoint any person of whose legal qualifications he was satisfied to sit. Parish Courts had jurisdiction to deal with claims not exceeding £10 in value or damage. They also had jurisdiction to handle applications in proceedings under the Increase of Rent and Mortgage Interest rules.17 Parish Courts did not adjudicate over matters involving title to land or trade disputes. Persons seeking the aid of a Parish Court in a civil matter applied to the clerk of their local court. Once a court clerk had gathered necessary

ibid. Casey (n 4) 327. 11 Davitt (n 1) 112. 12 Report from the Ministry of Home Affairs cited in Casey (n 1) 326. 13 Anne-Marie O’Connell, ‘National identity and judicial interculturality in Ireland: The Dáil Courts experience (1919-1924) 2016 Identity and Interculturality 88, 105. 14 ibid. 15 Davitt (n 1) 113. 16 Casey (n 4) 327. 17 ibid. 10

Living and Working in Ireland particulars including the payment of a fee, they would fill in a form, make a copy and obtain a signature from a member of the court.18 Where parties involved in a case did not reside in the same parish, proceedings would be brought to the parish in which any of the defendant(s) resided.19 District Courts District Courts consisted of five members. They dealt with matters which included appeals from Parish Courts, claims exceeding £10 but not more than £100 in value or damage, and cases involving a question of title to lands that could not have been brought in the County Court.20 District Court proceedings were ordinarily to be initiated by a civil bill. This was a document almost identical to the Parish Court civil process. A defendant involved in District Court proceedings was required to appear personally or by a solicitor.21 A civil bill had to be signed by the registrar or a solicitor and served by the District Court messenger. The period under which a bill had to be served prior to a court sitting depended on the amount claimed. In equity cases, when the claim exceeded £100, a plaintiff was required to file an affidavit testifying the facts of his case.22 All trials before District Courts were to be conducted by oral evidence and oral argument save for exceptional circumstances. Three times a year a Circuit Judge presided in a District Court, and such sittings were termed ‘circuit sittings.’23 At circuit sittings a District Court had unlimited jurisdiction and a circuit Judge would sit alone and decide all questions of law. Circuit sittings heard appeals from decisions of the ordinary District Court in claims exceeding £100 or involving title to lands exceeding £30.24 The Supreme Court The Supreme Court consisted of three sitting members who had to be legally qualified persons of at least twelve years’ standing unless a Minister determined otherwise. 25 A Supreme Court judge was appointed by the Dáil and was usually someone who also

ibid. O’Connell (n 13) 105. 20 Casey (n 4) 327. 21 Brian Farrell, ‘The Legislation of a ‘Revolutionary’ Assembly: Dáil Decrees, 1919-1922’ (1975) Irish Jurist 112-127. 22 O’Connell (n 13) 88. 23 Casey (n 4) 326. 24 ibid. 25 ibid. 19

Living and Working in Ireland functioned as a Circuit Judge or member of the Land Commission. 26 Ordinarily, the decision of the majority was the final decision of the court but where there was divided opinion amongst the judiciary the President made the final decision. All members of the Supreme Court could exercise the powers of a Circuit or District Judge. The court had both an original and an appellate jurisdiction.27 Operation of the Courts Every court member was required to subscribe to an oath or affirmation declaring their allegiance to the Republic of Ireland and that they would administer justice without fear, favour, ill-will or the hope of reward.28 By July 1921, the design and constitution of the courts had taken shape and the organisation of Parish and District Courts enabled them to begin to operate. However, as the Crown forces became more active the courts were forced to move underground. There was no code of law for the courts to follow. Courts had to administer justice as they saw it and standing members regulated their own procedure. One successful circuit sitting took place in North Longford where the judge went on to arrange for courts to be held in Mayo.29 However, this judge was later arrested by Crown forces and papers relating to this sitting in Longford were found in his possession.30 He was convicted and sentenced to imprisonment for eighteen months, reflecting how impractical it was for the courts to operate securely. Success of the Courts Between March and July 1921, circuit sittings were held in North and South Longford, as well as various parts of Clare, Limerick and Cork.31 Anyone who took part in the Dáil Courts was liable to prosecution or imprisonment. Sittings were held in county council offices, workhouses, hospital buildings, schools, farmhouses and barns.32 Between the end of the War of Independence and the signature of the Anglo-Irish Treaty, there was a significant increase in the volume of business transacted in the courts, particularly at a District and Circuit Court level.33 This period allowed for continuous communication between the Department of Home Affairs and Court offices 26

Davitt (n 1) 112. ibid 119. 28 Casey (n 4) 326. 29 ibid. 30 ibid. 31 Davitt (n 1) 123. 32 ibid 124. 33 ibid 27

Living and Working in Ireland outside of Dublin. One circuit sitting of the Dáil Courts, Beirne and Others v Kilgallon,34 made an order for specific performance by the defendant of an agreement for the sale for £6,000 of land. This case later came before the Supreme Court on appeal on 9 November 1921.35 Abolition of the Dáil Courts After the signature of the Anglo-Irish Treaty in December 1921 a decree was issued by the new Free State Government that the court system should continue to carry out their functions. However, there were still two rival court systems operating under the new provisional government.36 It was the Provisional Government's preference that the old pre-1919 court system be revived instead of Dáil Courts which had continued invariably to function and were the only court system in many rural areas.37 The Dáil Courts came to an end after the outbreak of the Civil War. Under the heading ‘Courts’ the minutes of the new Free State Government of 10 July 1922 reflected the end of the Dáil Courts stating that ‘their activities should be restricted as far as possible for the present and ultimately stopped altogether.’38 Conclusion The Dáil Courts were a significant part of Ireland’s struggle against the power of colonial institutions. Their existence was a short but intense moment of judicial experiment and wonder. From 1919-1922 crown forces constantly moved to suppress any efficiency within the judicial system. However, the courts succeeded in dispensing justice around the country for many months before the Free State Government called for their abolition. The Dáil Courts demonstrated that Irish people could maintain and operate a judicial system during a period of chaos.

Beirne and Others v Kilgallon [1922] Dáil Eireann Supreme Courts. Davitt (n 1)125. 36 Mary Katsonouris, The Winding Up of the Dáil Courts, 1922-25, An Obvious Duty ( (edn 19) 14. 37 Farrell (n 21) 122. 38 Minutes 10 July Provisional Government; see Brian Farrell ‘The Drafting of the Irish Free State Constitution: IV (1971) 6 Irish Jurist 345. 35

Living and Working in Ireland

AMBITIONS OF ‘LEGAL INDEPENDENCE’ IN THE IRISH FREE STATE Robert Grendon

In any post-revolutionary state, there is an ambition to bring about a new order in society and the Irish Free State was no exception in the early 1920s. The Irish people were no longer satisfied with the status quo and decided to bring about change. But when the dust and chaos of revolution, and subsequently civil war, began to subside, the onerous challenge of state building emerged. Key to this new constitutional order was the court system. The President of the Executive Council, WT Cosgrave, described the British Court system in Ireland as the monument of an alien government which had impressed itself onto the minds of the Irish people.1 There was a great impetus among figures such as the first Chief Justice, Hugh Kennedy, to change this and create a truly Irish Court system that was separate and distinct from its imperial predecessor. Like much of the birth of the Free State, the creation of the courts was steeped with conflict and controversy. The Government of Ireland Act, 1920 and the Constitution of the Irish Free State provided for a new system for the administration of justice. One of the main obstacles that had to be overcome for the new state was creating one centralised court system. Since 1919 there were two separate and competing court systems, the Dáil Courts and the official statutory courts under British jurisdiction. While the Dáil Courts had filled a certain vacuum during the revolutionary period, the decision was made in 1923 that they were no longer required and that they could be wound up. 2 Throughout the War of Independence, most legal matters throughout rural Ireland were handled by the Dáil Courts which had been established by the first Dáil to handle the administration of justice within the State. The courts claimed to have both civil and criminal jurisdiction and courts were largely suppressed in Dublin, where the official statutory courts still operated.3 The Dáil Courts had earned a reputation for being fair and efficient at handling local matters, but as the new Government set about forming a Ronan Keane, ‘The Voice of the Gael: Chief Justice Kennedy and the Emergence of the New Irish Court System 1921-1936’ (1996) 31(1) The Irish Jurist 212. 2 Mary Kotsonouris, The Winding-up of the Dáil Courts, 1922-1925: An Obvious Duty (1st edn, Four Courts 2004) 8. 3 Keane (n 1) ‘The Voice of the Gael’ 210. 1

Living and Working in Ireland legitimate state following the Anglo-Irish Agreement, they realised that the Dáil courts needed to cease. The competing court system was the official statutory courts that had already existed under the British administration. Under the Government of Ireland Act 19204, the court system on the island of Ireland had been split into two jurisdictions. Because of this the statutory courts that operated in southern Ireland from 1920 until the Courts of Justice Act 1924 were essentially the courts from the British administration, but they had lost jurisdiction over the new Northern Irish state. Article 75 of the Constitution of the Free State provided that until a new system was established, the existing court system would remain in place. As Cosgrave later set out in a letter to the Judicial Committee, these courts had lost the trust of the people and that they were a glaring bastion of British rule in Ireland that remained after independence.5 Similar to the establishment of the Dáil, the transition from a revolutionary court to the official courts of the Free State was one tainted by the Civil War. One glaring example of this conflict came in 1922 after the attack on the Four Courts. Diarmuid Crowley, who was one of the circuit judges for the Dáil Courts, had ordered the release of certain anti-treaty forces who had been detained following the assault on the Four Courts. Crowley went as far as to decree that Richard Mulcahy, the Minister of Defence was in open rebellion against the state and the government was in fact illegal. 6 This decision was ignored by the government and the decisions of the Dáil courts were held to have no bearing in law following R (Kelly) v Maguire.7 As well as this internal conflict and embarrassment, the Free State was under pressure from the British to get rid of the Dáil Courts. 8 Figures such as Winston Churchill, the colonial secretary, took particular issue with the existence of the Dáil courts in defiance of the statutory courts. There was also a fear that a failure to establish a centralised court system would be a breach of the Anglo-Irish Agreement 1921. When the constitution of the Free State was finally enacted in 1922, Articles 64-72 provided for the establishment of such a system in line with the requirements under the Anglo-Irish Treaty. While the Government of the Free State accepted that a new judicial order was needed to win over the support of the people, they also accepted that they would have

The Government of Ireland Act 1920, s 12. Keane (n 1) ‘The Voice of the Gael’ 212. 6 ibid 214. 7 R(Kelly) v Maguire [1923] 2 IR 58. 8 151 Hansard 1461 (9 March 1922). 5

Living and Working in Ireland to incorporate certain aspects of the British system that worked well and merge it with the successful aspects of the Dáil Courts. In January 1923, in order to achieve these two goals, Cosgrave appointed the judiciary committee to advise the Executive Council (the cabinet of the Free State) on the formation of the new courts. The judicial committee was chaired by Lord Glenavy, a former Lord Chief Justice of Ireland, but was also comprised of figures such as the future Supreme Court Justices James Creed Meredith and Hugh Kennedy KC, who was acting as the Attorney General for the Free State government.9 It is in their discussions and proposals that we see the push for an independent legal system emerge; a system that was distinguishable from its predecessor both legally and in character. The committee was divided as to how great these changes should be but certain members, especially Kennedy, wanted to draw on the older Irish legal traditions that predated the common law in Ireland as well as drawing on newer systems from beyond the common law world. Kennedy wanted to wipe the slate clean and create an indigenous system.10 Other members of the committee such as Lord Glenavy were not as revolutionary minded and resisted major change. The revolutionary nature of the changes that Kennedy pushed for varied from grand to small. Ideas such as abandoning the common law and adversarial system, and changes to courtroom attire and decorum were all toyed with, however there was resistance from the more conservative members of the committee.11 While these ideas were ultimately abandoned, we can see that there was an ambition for great change. Much of these greater ambitions had their wings clipped by the Treaty. Article 1 of the Treaty set the Free State’s constitutional status on par with other dominions such as Canada. The constitution of the Free State provided that an existing statute and the common law in its entirety had to be adopted by the Free State. The system envisaged by Kennedy would be alien to modern Irish practitioners and students. Instead of our adversarial system with barristers in horsehair wigs and black robes to mourn the death of King Charles II12 and working with statute and case law, we could have seen an inquisitorial system with attorneys wearing the colourful robes influenced 9

Ruadhán Mac Cormaic, The Supreme Court (1st edn, Penguin 2016) 22. Hugh Kennedy, ‘Character and Sources of the Constitution of the Irish Free State’(1928) 14(8) American Bar Association Journal 445. 11 Mac Cormaic (n 9) 23. 12 The black robes worn by barristers were adopted by the Bar in 1685 following the death of King Charles II. 10

Living and Working in Ireland by the Gaelic Judges of Ireland and working with codified law with a strong brehon influence.13 Ultimately the committee produced recommendations that were mostly adopted and implemented with the Courts of Justice Act, 1924. While the committee had gone to great lengths to create a separate and distinct system, there was still one major problem hanging over their heads: the Privy Council. The right to appeal to the Privy Council was viewed by the Protestant minority as a means to protect themselves from the Catholic State, but to the rest of the state it stood as little more than an embarrassment. In accordance with the Anglo-Irish treaty, Article 66 of the Constitution of the Free state permitted appeals to the Judicial Committee of the Privy Council. This had been a major point of contention for nationalists and Article 66 was drafted in such a way so as to limit appeals and establish the supremacy of the Irish courts. Nonetheless the fact that decisions of the Supreme Court in Dublin could be appealed in London undermined the autonomy of the Free State’s courts. Until 1935 following a ruling from the Privy Council itself, the Judicial Committee of the Privy Council stood as a looming reminder to the Irish judiciary that it was administering justice in a dominion and not in an independent state. While there is a rich history of legal practice on the island of Ireland that predates any British rule in Ireland, as Irish students are told at the beginning of their studies, our legal system is heavily based on the English system. Over the past century we have seen the development of a more distinctly Irish system with departures in areas such as negligence and land law, but as Geoghegan J put it, this has been a gentle evolution rather than anything really revolutionary.14 However, the institutional framework maintains a notably English character. During those early days of state building, ambitious figures were held back by the Treaty and the Constitution of the Free State. Instead of having the freedom to create a unique and fully independent system, they had to create the system of a dominion. As mentioned, we have seen some changes, but nothing monumental. The goal of hearing the voice of the Gael was achieved, but it is heard in a courtroom firmly built on English roots.

Mac Cormaic, (n 9) 25. Hugh Geoghegan, ‘Three Judges of the Supreme Court of the Irish Free State, 1925-36’ in Felix M Larkin and NM Dawson (eds), Lawyers, The Law and History: Irish Legal History Society Discourses and Other Papers 2005-2011 (Four Courts Press 2014) 31. 14

Living and Working in Ireland

THE EVER-CHANGING GROUNDS FOR ANTECEDENT TO IRISH LEGAL CHANGE

ANNULMENT

Andreena Corrigan

Irish law and society continue to hold dear an attachment to the institution of marriage as the primary basis for relational commitment evidenced by the ‘inalienable and imprescriptible’1 protections afforded to the marital family in our courts. Yet, though marriage is attributed perpetual importance the legal concept has transformed over the past 100 years. 2 Amidst the ground-breaking developments of recent past one scarcely documented relief has refused to lull in its development: annulment.3 Curiously, though the popularity of this relief has waned since the mid-century expansion of divorce a mesa et thoro and later introduction of divorce, in affirming the non-existence of what was once a valid marriage, annulment is a remarkably potent device when observed in any constitutional context, disregarding constitutional marriage protections. With just one qualifying ground for divorce and six bases for judicial separation, the recognised circumstances for nullity decrees have varied throughout the decades reaching a total of sixteen identifiable grounds today. 4 Spanning both void and voidable decrees, decisions in this area have historically illuminated the court’s view on issues far exceeding the proceedings before it. It is therefore possible to trace the court’s evolving views on a variety of social issues through the lens of the nullity decree as it continues to grant jurisdiction for judicial exploration of today’s contentious issues. For conciseness, this essay shall detail four of the recognised grounds for annulment: two rendering marriage void and two rendering it voidable. This essay will also seek to demonstrate how relevant judgments have contributed to landmark legal developments.

Article 40.1.1°. Margret Fine-Davis, ‘Attitudes to Family Formation in Ireland: Findings from the Nationwide Study’ (Trinity College Dublin, 2011) [60]. 3 Family Law (Divorce) Act 1996; The Marriage Act 2015. 4 Law Reform Commission, Report on Nullity of Marriage (LRC 9—1984) contains a concise reiteration of nullity grounds up to that point, however, disappointingly little has been written on the subject since. 2

Living and Working in Ireland Capacity to Marry and the Law’s Relenting Homophobia Regarding capacity to marry, the sex of parties to a marriage was of course a ground for nullity in the not-too-distant past. The classic definition concerning ‘the voluntary union for life of one man and one woman’5 is undoubtedly the most pertinent point of discussion in this respect, subsequent Irish decisions contextualising judicial views on transgenderism and same-sex marriage. While relevant legislative enactments and judicial statements emphasise the union of man and woman 6 such is never defined, resulting in the bizarre situation wherein successful sex claims of transgender people subsequently failed for the purpose of marriage.7 Though Irish recognition of transgenders’ right to marry is inextricably tied to English8 and European courts9 discussion inevitably culminates in Foy v Registrar v Births Marriages and Deaths.10 This seminal case concerned Dr Lydia Foy, a transgender woman denied a new birth certificate by the Registrar of Births, Marriages & Deaths. Initially, Foy was decided in favour of the respondent, the High Court being unaware that the ECtHR would, but two days later, rule the UK in breach of human rights under similar circumstances.11 In Foy’s de novo appeal relying on both the ECHR Act 2003 and recent ECtHR judgments, the High Court was forced to recognise a violation of Dr Foy’s Article 8 rights.12 Though exceptions had already been made to the sanctity of the birth certificate and the Irish Court was inarguably goaded into its holding by EU intervention, this decision veering towards ensuring ‘a fair balance between the interests of society as a whole and that of the individual’ stands as a significant legal achievement.13

Hyde v Hyde and Woodmansee (1866) LR 1 P&D [130] (Lord Penzance). Re the Marriage of C and D (falsely called C) [1979] 35 FLR 340 [345] (Bell J.); Re the Marriage of S [1980] 42 FLR 94 [102] (Watson SJ.); Baker v Nelson (1971) 291 Minn 310; Jones v Hallahan (1973) 501 SW 2d 588; Singer v Hara (1974) 522 P 2d 1187. 7 Commonwealth of Australia Constitution, s.51(xxi); Margaret Otlowski, ‘The Legal Status of a Sexually Reassigned Transsexual: R v Harris and McGuiness and Beyond’ (1990) 64 The Australian Law Journal [67]. 8 Corbett v Corbett [1970] 2 All ER 33; SY v SY (orse W) [1962] 3 All ER 55; ST (formerly J) v J [1998] 1 All ER 431. 9 Rees v UK App No 9532/81 (ECHR 17 Oct 1986); Cossey v UK (1991) App No 10843/8413 (ECHR 27 Sep 1990). 10 Foy v The Registrar of Births Marriages and Deaths [2012] 2 IR 1. 11 Goodwin v United Kingdom, App No 28957/95 (ECHR 11 July 2002). 12 Convention for the Protection of Human Rights and Fundamental Freedoms, Art 8. 13 Foy v The Registrar of Births Marriages and Deaths (10) [90]. 6

Living and Working in Ireland Though in this instance the resulting Gender Recognition Act 2015 could be identified as a rational but isolated outcome, it could also be viewed as anticipating the Marriage Act 2015 which effectively resolved many problems in this area. Duress Inducing Consent to Marriage and the Law’s Subjectivity In assessing duress inducing consent to marry, an entirely subjective approach was adopted long before a similar trend could be observed in other areas of the law. Despite Griffith’s initial willingness to assess individual case facts, duress being a ‘question of degree’14 necessitated an objective approach.15 This objective approach swiftly encompassed an assessment of duress arising from fear, threats, intimidation, and undue influence on life, liberty, or limb. Perhaps attributable to the disproportionate retention of subjectivity in UK criminal law, changing judicial attitudes in Ireland initiated diversion, allowing a finding of duress only after the consideration of a number of subjective factors. 16 Despite initial objections, particularly in the judgments of Barron J 17 decisions have since embraced the more accommodating approach.18 Conclusively, with the High Court continuing to apply the old objective test, the appeal cases of N v K19 and B v OR20 allowed the Supreme Court to resolve residual doubts by accepting MK v FMcC21 and reinforcing subjectivity. Post N v K,22 growing acceptance of subjectivity continues,23 with even its most vehement critic relenting.24 However, it is important to note that applicants have been denied decrees on an increasing number of occasions25 disproving the perceived lessdemanding nature of subjectivity. There is no denying however, that relative subjectivity is capable of delivering justice to both petitioner and respondent alike and 14

Griffith v Griffith [1944] IR 35 [42] (Haugh J). Kelly v Kelly (HC, 16 December 1971) 16 B v D (HC 20 June 1973); MK v FMcC [1982] ILRM 277. 17 ACL v RL (HC 8 October 1982, Barron J); JR v PMcG (HC 24 February 1984 Barron J.); EP v MC (HC 13 March 1984, Barron J). 18 CO’K v WP [1985] IR 279. 19 N v K [1986] ILRM 75. 20 B v OR [1991] 1 IR 293. 21MK v FMcC (n 16). 22 N v K (n 19) . 23 AM v TM (HC 11 January1993, O’Hanlon J.); PW v AOC [1993] 1 IR 324. 24 W v C [1989] IR 696; WC v PJ (HC 23 February 1995, Barron J). 25 KW v MW (HC 19 July 1994, Lynch J); BC v LO’F (HC 25 November 1995 Morris J). 15

Living and Working in Ireland has since been adopted in many areas of Irish law. 26 Mental Illness’ Debilitating Effect on Marriage and the Law’s Growing Recognition Though the ‘inability to enter into and sustain a normal marital relationship’ ground has been judicially moulded on the well-established impotence petition, it is more fitting to first consider the court’s conception of mental illness’s debilitating role in marital relationships due to its far-reaching effects. The creation of this ground exemplifies a changing legal landscape, with Costello J. alluding to ‘the obvious fact that there is more to marriage than its physical consummation’.27 It was on a case-bycase basis that psychiatric illnesses were assessed as inhibiting a normal marital relationship.28 The most significant test of this new ground, however, was in UF(C) v JC.29 Though concerning the respondent’s homosexuality, Keane J. made clear that the analogy between impotence and incapacity to enter into and sustain a proper marital relationship ‘would appear to be valid not only in cases [of] mental illness…but also in cases where it arose from…an individual’s nature or personality…’. In this way, the Supreme Court chose to categorically endorse both D v C30 and RSJ v JSJ’s31 latency ‘at the date of the marriage’32 criterion. Creation of this mental illness ground for annulment petitions can be deemed to have been of greater legal importance considering the publication of the Law Society’s Mental Health: The Case for Reform33 at the end of the same decade and the ensuing Mental Health Act 2001. Though largely unrelated to matrimonial law and unsuggestive of any alteration to nullity proceedings, the proximity of these events is

Peter Charleton, Paul McDermott, Ciara Herlihy, and Stephen Byrne, Charleton & McDermott’s Criminal Law and Evidence (Bloomsbury, 2nd edn 2018) [16.17]. 27 D v C [1984] 4 ILRM 175 (Costello J). 28 GM v TG (HC 22 November 1991 Lavan J); W(C) v C [1989] IR 696; S v K (High Court 3 April 1992, Denham J); PK v MB (MK) (HC 27 November 1992 Costello J.); SC v PD(C) (High Court 14 March 1992 McCracken). 29 UF(C) v JC [1991] 2 IR 330. 30D v C (n 27). 31 RSJ v JSJ [1982] ILRM 263. 32 ibid [265]. 33 Law Society’s Law Reform Committee, Mental Health: The case for reform (Dublin, July 1999).

Living and Working in Ireland compelling. Impotence and the Law’s Constant Balancing of Rights The final and perhaps most current instance of nullity law engendering wider legal consideration is claims of impotence. Even early judicial consideration recognised instances of ‘incapax copulandi [as] apart from the question [of] incapax procreandi’,34 thereby establishing fertility status as irrelevant.35 With an incredibly wide definition given to coitus in marriage with factors such as contraception,36 coitus interruptus,37 sterility,38 and adultery39 extraneous, it is understandable that the court would wish to apply this definition strictly. In one respect, this strictness could be viewed in terms of limitations identified by the courts such as incurability of impotence40 and non-reliance on one’s own impotence.41 It is submitted, however, that it is more fitting to view strictness in this area in terms of burden of proof and judicial powers under Order 79, Rule 32 of the Rules of the Superior Courts. 42 Interestingly, the burden of proof43 is fixed at the criminal standard of ‘beyond all reasonable doubt’44 as opposed to the civil law standard. With marriage understood as a private matter it is significant that the courts chose to view the constitutional backdrop of matrimonial issues and ancillary public policy considerations as requiring this higher standard. Conflictingly, in allowing for compulsory medical examinations for both parties,45 Order 70, Rule 32 seemingly disregards several of the parties’

G v G [1924] AC 329 [2] (Lord Dunedin); McM v McM & McK v McK [1936] IR 177 [352] (Hanna J). 35 MM(C) v PM [1986] ILRM 515 reiterates that ‘emission of seed is not necessary’ to constitute coitus. 36 Clarke(Talbot) v Clarke [1943] 2 All ER 540; Baxter v Baxter [1948] AC 274; REL v EL [1949] 211. 37 White v White [1948] 2 All ER 151; Cackett (Trice) v Cackett [1950] 1 All ER 677. 38 R v R(F) [1951] 1 All ER 1194; MM (C) v PM [1986] ILRM 515. 39 S v S (Unreported, Supreme Court 01/07/1976); LC v BC [1986] ILRM 618; AO’H(F) v F [1986] ILRM 486. 40 Dickenson v Dickenson [1913] 198; W v H (1861) 2 Sw&tr 240. 41 McM v McM & McK v McK (n 34) [219-220] (Hanna J). 42 F v P(F) (1869) LT 192; B(H) v B [1901] 39; W v S(W) [1905] 231; S(B) v S [1943] NI 87. 43 NF v MT(F) [1982] 2 ILRM 545; (n 39) LC v BC. 44 C(H) v C [1921] P. 399 applied in S v S (SC 1 July 1976) (Kenny J). 45 F v P(F) (1869) LT 192; B(H) v B [1901] 39; W v S(W) [1905] 231; S(B) v S [1943] NI 87.

Living and Working in Ireland unenumerated constitutional rights.46 With matrimonial law never straying far from wider legal consensus, it is worthwhile to consider if similar mechanisms might be utilised in other areas of Irish law. This is particularly true regarding vaccine passports and other pandemic-related issues which induce a perpetual balancing act between personal rights of the individual and interpersonal rights of the community. From the liberalisation of judicial attitudes towards sexuality to growing support for subjectivity in the modern law and from developments in the area of mental illness to questions of constitutional conflict in privacy issues, the overarching influence of matrimonial law has impacted far more legal and social issues than it is often-accredited. With public opinion largely echoing the changing attitudes of the courts in these areas, it may be possible to trace the social development of Ireland through the decades by dissecting these judgments, particularly in light of insufficient case law on some more controversial issues. Conclusively, though the development of annulment has slowed in recent years, matrimonial law undisputedly permits judicial remuneration on issues far exceeding the gamut of any individual case. Indeed, one cannot help but recall Shatter’s regarding ‘[n]ullity law…[as] a juridical monument to the powerful impact of a dynamic judicial creativity’47 over the past 100 years.

Ryan v Attorney General [1965] IR 294 (right to bodily integrity); McGee v Attorney General [1974] IR 284 (right to marital privacy); Norris v Attorney General [1984] IR 36 (right to individual privacy). 47 Alan Shatter, Family Law (4 edn, Butterworths 1997) [181].

Living and Working in Ireland

THE DOCTINE OF PROPORTIONALITY: AN EXAMINATION OF CONSTITUTIONAL DECOMPOSITION BY THE IRISH JUDICIARY Adam O’Leary

Introduction The doctrine of proportionality is a theory reflecting the consideration of public policy in judicial decision-making. It has three streams of application in Ireland, the stream for discussion here being its role in constitutional and administrative law. It is clear by how the test has been applied by the Irish Courts that it will allow for the express (albeit minimal) infringement of constitutional rights. This will be dependent on there being a sufficient public benefit operating in tandem with that infringement.1 From this definition, a number of issues arise relating to clarity and the roles the proportionality test seems to create. For instance, by what metric is public benefit measured against the fundamental protections afforded to citizens, and which institution is supposed to determine this? Indeed, the more suitable language within the academic literature refers to justifications under proportionality as mere ‘claims of the common good’ 2 rather than well-reasoned arguments of tangible benefits. The manifestation of this doctrine in the Irish jurisdiction, while impactful, has not been extreme in the sense of dismantling constitutional provisions. In that sense at least, we have not been faced with some explicit incursion into other aspects of the separation of powers. Alternatively, the proportionality test has been primarily applied to the Court’s evaluation of legislative decisions made by the Oireachtas rather than their own judicial decisions.3 The point to be brought forth in this article is therefore that while the test seems to form an essential, functional role across procedural law, the underlying issues with its adoption and hopelessly vague application must be addressed. The problem lies not with the impact it has already had, but what that impact and these issues indicate about how the doctrine could be used in the future.

Heaney v Ireland [1996] 1 IR 580, WJSC-SC 3768. Eoin Daly, ‘Reappraising Judicial Supremacy in the Irish Constitutional Tradition’ in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, Politics and the Irish Constitution (University Press Scholarship 2017) 29. 3 Brian Foley, ‘The Proportionality Test: Present Problems’ (2008) 1 Judicial Studies Institute Journal 67. 2

Living and Working in Ireland The Heaney Decision and its Consequences In the trailblazing case of Heaney v Ireland the Supreme Court examined a specific provision of the Offences Against the State Act. 4 This piece of legislation provides for crimes related to treason and terrorism. The proportionality test was applied to validate provisions which would require detained persons to give ‘a full account of such person’s movements and action during any specified period’.5 This is not exactly a shocking revelation, and it is doubtful that there would be much protest to a provision which so rightly assists in the uncovering and criminalisation of these serious criminal offences. However, the devil resides in the details. The decision in Heaney makes much reference to the importance of protecting the public and how the Act in question achieves this. 6 In doing so, it appears to create a distinction between the interests of the public and the separate interests of the State. The ‘entitlement of the State to protect itself’ 7 was actually the primary rationale used by the Court in identifying proportionality. This is an excessively broad justification, and this particular wording opens up dangerous opportunities for overreaches of power. It creates precedential force which could permit drastic measures relating to law enforcement and civil defence. There is no definition of what government and legislature has the right to protect itself from, and indeed a dangerous assurance that the Courts may be lenient in protecting these non-specific interests against fundamental rights. If this were not enough to point out the problems associated with proportionality, the doctrine represented a practically baseless rationale which was quickly overturned. In the subsequent case of Heaney v Ireland8 before the European Court of Human Rights, it was held that the provisions defended by the Irish Supreme Court violated the concept of fair trial as provided by Article 6 of the ECHR. 9 The Act was found not to be proportionate, with the threat of terrorism not being enough to invalidate the rights to silence and non-self-incrimination. This disagreement from the Courts at a supranational level demonstrates how proportionality provides a weak rationale which,

Heaney v Ireland (n 1). ibid s 52(1). 6 Heaney v Ireland (n 1) [32]. 7 ibid [35]. 8 Heaney and McGuinness v Ireland (34720/97) [2000] 12 WLUK 685 (2001) 22 EHRR 12. 9 European Convention on Human Rights 1950 Art.6 5

Living and Working in Ireland as it is subjective in nature, can be easily overturned where a higher court holds a different opinion on the imaginary balance to be struck.10 Further Case Law on Proportionality Another decidedly proportional area of criminal law is that which informs the procedure behind ‘breath-test’ checkpoints set up by An Garda Síochána. While they have been approved by the Courts, concerns over their constitutionality have been considered by the High Court in Weir v DPP.11 The very essence of such checkpoints are that they are randomised in terms of the citizens that are selected for testing. In a strict application of the Constitution, this activity is entirely unlawful. With the right to freedom operating in this jurisdiction, it would typically be absurd that a law would enter into force that allows Gardaí to invasively halt people without probable cause or reasonable suspicion. The proportionality rationale here lies in the need to combat high rates of intoxicated driving and fatalities arising from that societal problem. With respect to that case, proportionality has created two additional changes to life in Ireland. In a more everyday sense, it has firstly allowed for a more practical manner for identifying those driving after consuming alcohol. However, its negative aspect lies with how constitutionality has been substituted with this practicality. Again the problem is a lack of precision as drink-driving is most definitely a consequential offence as are many others. If the Courts are willing to allow this legislation without outlining limits or express directions for the legislature, what is to stop the passing of laws with broader effect and perhaps even increased invasiveness. One cannot consider the development of proportionality without reference to the decisions in Meadows.12 This pivotal case resolved discrepancies over judicial involvement in the administration of the State, and the relevance of the proportionality test in such interference. The most significant consequence of the decision is that it created a mechanism for judicial involvement in administrative decisions where the court itself is satisfied that they go beyond ‘fundamental reason and common sense’. The court introduced this as an extension of judicial interpretation and argued that it does not give them any additional jurisdiction. However, the assumption of further Clary Ovey and A J Ashworth, ‘Heaney and McGuinness v Ireland’ (2001) 6 Criminal Law Review 481 . 11 Weir v DPP [2008] IEHC 268. 12 Meadows v Minister for Justice, Equality and Law Reform [2010] 2 IR 701, [2011] 2 ILRM 157 10

Living and Working in Ireland responsibility which is usually reserved for other state organs can only be seen as an attempt to broaden their influence and discretion. Conclusion What has been explored in this article is a doctrine that requires prompt qualification before there is a chance to abuse it from a position of political influence. This is not saying that the proportionality test has been developed in line with some undesirable agenda, but it has been used somewhat arbitrarily in protecting the State and public while omitting to protect the Constitution at the same time. As pointed out within specific cases of judicial review, the test has a clear requirement for definition and limits. If the legislature is going to be allowed to constrain constitutional rights with the approval of the judicial branch, the test cannot be a vague one based on the abstract notion of striking a proper balance.13 As with many judicial tests then, for example, there could be multiple stages with explicit items to be considered. In the spirit of questioning the test itself, however, it could also be questioned why its existence has been allowed to continue despite how legislative and administrative practice has evolved since its inception. Indeed, proportionality exists on the very boundaries of acceptable judicial law-making if not breaking them. Would it be prudent to place more emphasis on this overall issue at the pre-legislative and parliamentary stages, with heavier consultation from the legal and judicial community on proportionality specifically? Moreover, if the test should continue to be used, it can be contended that the requirement of minimal infringement of rights is neither sufficient nor intelligible enough to provide the limits needed. In the wider world that exists outside of the pre-existing case law, there is an unquantifiable number of stakeholders and groups to be considered under the context of constitutional rights. This is just one of the deficits which makes the doctrine entirely unsuitable for the resolution of rights issues, whether or not these rights are seen as indispensable absolutes.14 In examining the problems with Heaney, one must also take issue with the nonrepresentative judiciary being the body to weigh the interests of those stakeholders against one another. This of course brings up a wider debate on popular appointment of Niall Buckley, ‘Merging Principles of Public Law: Towards Proportionality in an Irish Context’ (2004) 39(1) Irish Jurist 161. 14 Kai Moller, ‘Proportionality: Challenging the Critics’ (2012) 10(7) Int’l J Cons 709. 13

Living and Working in Ireland judges, but that discourse does find particular relevance in this discussion. The rights mentioned in this article and the wider corpus of international human rights protect those in less fortunate and sometimes desperate circumstances, who currently do not have a say in how those rights are interpreted and protected. In extended reform, there would need to be a greater focus on representation and consultancy in all matters evaluating the measure of rights against important laws, and certain safeguards to protect those groups and individuals that could be potentially disenfranchised. Either way, there is clearly a need for change, to protect the Irish State of the past 100 years for another 100 years, and beyond.

Living and Working in Ireland

DEVELOPMENT OF CHILD PROTECTION LAW IN IRELAND SINCE THE IRISH FREE STATE Mollie Breen

Child protection in Ireland has developed immensely over the last 100 years. Irish legislation concurrently developed with society’s changing attitude towards the concept of child protection. Subsequently, a highly regulated child protection system exists today under the current legislative framework of the Child Care Act 1991. The Act introduced a greater emphasis on child welfare by placing a proactive duty on the state to protect children for the first time.1 In 2012, Article 42A of the Constitution was amended to give children their own rights, making the welfare-based decision-making model under the Child Care Act 1991 slightly out of date. This article aims to highlight the significant development of child protection in Ireland whilst also analysing the limits of the current legislation in adopting a child-centric approach. Roman Catholic social teaching dominated the public discourse and shaped all aspects of day to day life in the early decades of the Irish Free State.2 The 1908 Child Act governed the child protection system which consisted of industrial schools and reformatories. Industrial schools were established to care for delinquent children and reformatories were designed for children who had been abandoned by their parents.3 The system was one which promoted ‘child saving’, evident by the state’s provision of accommodation through the industrial system.4 This system coincided with the upsurge in Catholicism as Irish religious orders undertook the daily running of these institutions.5 Under the 1908 Act there was no duty on the state to look after children. 6 There was no system of inspection and the state did not introduce regulations. 7 The lack

Child Care Act 1991, s 3. Kieran Walshe, The Development of Child Protection Law and Policy: Children Risk and Modernities (Routledge 2020) Ch 3. 3 Stanislaus Kennedy, ‘Child Care in Ireland,’ (1996) The Furrow 5, 271. 4 Walshe (n 2). 5 Kennedy (n 3), 271. 6 Catherine McGuinness, ‘It is a long way from Kilkenny to here: Reflections on legal policy developments before and since the publication of the Kilkenny Incest Investigation,’ in Deborah Lynch and Kenneth Burns (eds) Children’s Rights and Child Protection (Manchester Press 2012) 47 – 61. 7 Walshe (n 2). 2

Living and Working in Ireland of state control allowed for significant intervention from the voluntary sector. Evidence of persistent child abuse perpetrated by officials from within the voluntary sector has arisen due to the sector’s ability to exercise full control without state intervention. 8 The 1970 Kennedy Report inquired into the industrial and reformatory system. Child abuse and hence inadequate protection of children under the industrial system was disclosed.9 The report emphasised that a system in Ireland existed whereby there was no real concept of child protection.10 Further national inquiries acknowledged the state’s failure to intervene in child abuse cases.11 These findings resulted in an emerging public discourse regarding the need to implement a modern child protection system. Changing attitudes and subsequent debates on child protection ultimately led to adoption of the Child Care Act 1991, which promotes a more proactive model based on child welfare. 12 The Child Care Act 1991 provides a more significant role for the state in child protection than its predecessor, the 1908 Act. The 1991 Act assigned the state as the principal providers of child protection services through the Health Boards; the Health Executive Service (HSE) and currently through the Child and Family Agency (CFA). 13 The imposition of state obligations are evident in section 3 of the 1991 Act. Section 3 states that it is ‘the function of every health board to regard the welfare of the child as the first and paramount consideration.’14 Moreover, section 3 includes the action of taking steps to identify children who are not receiving adequate care and protection. 15 In MQ v Gleeson, Barr J accepted that there was a duty on the health board (now TUSLA ) to investigate allegations of child abuse under Section 3 of the 1991 Act. 16 This proactive duty which the 1991 Act placed on the state contrasts starkly with the minimally regulated child protection system under the 1908 Act. 17 Section 5 of the 1908 act was used as a base for applications to take children into care.18 Children were permitted into

The Report of the Commission to Inquire into Child Abuse (The Ryan Report) 2009. The Reformatory and Industrial Schools Systems Report (Kennedy Report) 1970. 10 Walshe, (n 2). 11 McGuinness (n 6).. 12 Ursula Kilkelly, ‘Learning Lessons from the Past: Legal Issues Arising from Ireland’s Child Abuse Reports,’ (2012) 12 Irish Journal of Applied Social Studies, 16 – 19. 13 Walshe (n 2) 114. 14 Child Care Act 1991, s 3 (1). 15 ibid, s 3 (2) (a). 16 MQ v Robert Gleeson and Ors (1998) 4 IR 85. 17 Geoffrey Shannon, Child Law (Roundhall 2005) 111. 18 McGuinness, (n 6) 49. 9

Living and Working in Ireland the care of a ‘relative or other fit person.’19 In State v G the Supreme Court held that the health boards had no statutory duty to act as ‘fit persons’ under the 1908 Act.20 However, under the 1991 Act, the state through TUSLA are obliged for the first time to actively seek for children needing protection and provide the necessary care to those who require it. Additionally, judicial review can be enforced by the state’s failure to conform with this statutory duty.21 The addressed sections of the 1991 Act coincide with Shannon’s view that the Act marks a departure from the reactive model of child saving to one with a greater emphasis on child welfare.22 The 1991 Act evidently introduced increased protection for children in Ireland. However, the welfare-based model falls short of centring children’s rights.23 Under the 1991 Act, the welfare of the child is not paramount in cases between parents and the state.24 The primacy is evident in section 3 and section 24 of the 1991 Act. Both sections state that the rights and duties of parents must be considered in regard to the welfare of the child.25 The prioritisation is further evident throughout case law. 26 A series of reports were published which suggested that the threshold for state intervention in family life to protect children had been set too high due to the constitutional presumption that the child’s best interests lie with its birth parents.27 At a legislative level, the welfare principle of the 1991 Act was analysed by the courts through the ‘lens of constitutional protection for family autonomy.’28 Calls for reform of the Constitution emanated due to the lack of provision for children as right-holders in Ireland’s child protection law.29 In November 2012, the enactment of a new provision of the Constitution was approved by referendum; Article 42A, which recognises children as right-holders.30 Article 42A provides that the state must ensure that the ‘best interests of the child are the paramount

Children Act 1908, s 59. State v Groake (1990) 1 IR 305. 21 ibid 230. 22 Shannon (n 8) 113. 23 Ursula Kilkelly, Barriers to the Realisation of Children’s Rights (2007) 63 -75. 24 Re JH (1985) IR 375. 25 Child Care Act 1991, s 24. 26 Re JH (n 24); N v HSE [2006] IESC 60, IR 374 – Fennelly J stated that there is a ‘primordial constitutional principle that a child’s welfare is best served in the heart of its natural family.’ 27 Conor O’Mahony, ‘The Same, but Different? Article 42A and the Threshold for State Intervention in Family Life: In Re JJ.’ (2022) Irish Supreme Court Review 3. 28 ibid, 4. 29 Kilkelly (n 12). 30 O’Mahony, (n 28) 2. 20

Living and Working in Ireland consideration.’31 This best interests’ principle differs from the welfare principle in the Child Care Act 1991. The conflict between parental and children’s rights has been tested in the Supreme Court in the case of Re JJ in January 2021.32 The Supreme Court ruled that medically recommended treatment for a critically injured boy should be authorised despite the refusal of the boy’s parents.33 The court reasoned that in cases where suffering is ‘extreme’ and ‘avoidable’ the state may intervene in parental decisions. 34 The child’s best interests were unduly considered. This decision has been thought to highlight that the threshold for state intervention has been lowered.35 However, such a decision may have been possible prior to the insertion of Article 42A due to the high threshold that has to be met to override the parental decision.36 Further, the lack of a definition of ‘best interests’ due to the 1991 Act adopting a welfare approach has resulted in conflicting judgments and obiter commentary.37 This uncertainty may result in future judgments which prioritises parental decision over the child’s best interests. 38 The Law Society and the Department of Children and Youth Affairs has recommended that the 1991 Act be amended to make explicit provisions for the best interest’s principle to be a paramount consideration, as opposed to welfare. 39 To ensure a child-centred approach is adopted a best interests test needs to be prioritised through reform instead of the welfare approach currently present in the 1991 Act. Such reform will result in equal treatment for child protection decisions and prevent the discrepancy which prevails within the judiciary.40 It is evident that child protection law changed dramatically from the introduction of the 1991 Act, mainly due to the proactive obligation placed on the state. The Constitutional amendment limits the Child Care Act 1991 in cases of balancing the rights of the child

Article 42A 4.2. Re JJ (2021) IESC 1. 33 ibid. 34 ibid. 35 Finn Keyes, ‘Children’s Rights and End of Life Decision-Making: In the Matter of JJ’ (2021) Irish Judicial Studies Journal 58. 36 O’Mahony (n 28) 11. 37 Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution (5th edn, Bloomsbury professional 2018) 2298; PH v Child and Family Agency [2016] IEHC 106, para 40. 38 Eoin Carolan, ‘The Constitutional Consequences of Reform: Best Interests after the Amendment’ (2007) 3 IJFL 4, 2. 39 Law Society Submission, Review of the Child Care Act 1991 (2018) 14. 40 PH v Child and Family Agency (2016) IEHC 106; M v Minister for Justice and Equality (2018) IESC 14. 32

Living and Working in Ireland and the parents. The Act’s welfare approach as opposed to a best interest’s approach has resulted in an inconsistency in ensuring children’s rights are centred. Subsequently, reform is necessary to ensure Ireland has a consistent approach to child protection.

Living and Working in Ireland

100 YEARS OF BEING A WOMAN IN IRELAND: FROM FIGHTING IN THE WAR TO FIGHTING IN THE COURT Larisa Mirt

Introduction This article will examine 100 years of the Irish State from the perspective of being a woman working and living in Ireland. The focus of this piece is the legal change that has occurred in Ireland since the War of Independence. The essay will be divided into three parts. The first will give a brief overview of women’s role in the War of Independence and the Civil War and will describe the tension between nationalist sentiment and the feminist movement which shaped the legal landscape in the newly created Irish Free State. The second part will analyse the experience of women working in Ireland since independence, including the marriage bar and other developments. The third part will focus on what it means to be a woman living in Ireland. This part will anchor itself in the topic of marital rape. The War of Independence and the Civil War An organisation that played a massive role in the fight for independence and thus must be discussed is Cumann na mBan. This was an organisation run by women for women and supported women’s suffrage. During the War of Independence, it engaged in nonviolent activities such as fundraising and demonstrations.1 During the Civil War, Cumann na mBan continued its military duties. It was during this time that service entailed less gendered duties.2 Although its efforts were recognised by the new government in 1932, which was unusual ‘by contemporary European standards’,3 government-issued pensions were limited for members of Cumann na mBan. For example, women who had responsibilities equivalent to ‘higher IRA service grades’ were omitted.4 It is clear, then, that while acknowledging female military

Linda Connolly, Women and the Irish Revolution: Feminism, Activism, Violence (Irish Academic Press 2020). 2 ibid. 3 ibid 63. 4 ibid 64.

Living and Working in Ireland participation in the independence struggle, the government simultaneously contained it. Feminism was clearly critical in developing the Irish Revolution, but the relationship between nationalism and feminism was complicated. Nationalist movements used tradition as a source of national identity, which included gendered ideas. Therefore, the biggest challenge for women at the time was reconciling these traditional ideas with the modern women’s movements. 5 This struggle between national identity and the feminist movement can be clearly seen from the development (or arguably at times, regression) of legal rights of the women living and working in Ireland post-Independence. Employment and the Marriage Bar The marriage bar impacted women’s place in the workplace heavily. It was introduced in the 1920s for the civil service and in 1932 for teachers. It effectively meant that once a woman was married, she would have to give up her job. This happened as a result of the country changing into a conservative country post-independence; independence ‘for the country did not mean greater independence for women’.6 Ireland became ‘economically depressed, socially conservative and religiously devout’ and the role of women in society was very restricted.7 The ban was introduced through changes in employment regulations for teachers, which meant that it was part of the terms and conditions upon taking up employment in the sector. This meant that this could be changed if sought, as it was not national legislation. This was different for women working in the civil service, where the ban carried a much heavier weight. It also banned any woman, married or not, to be employed at higher levels in the industry. However, this total ban was slightly alleviated by the financial gratuity women would receive once they got married.8 The marriage bar was eventually abandoned in 1977 when discrimination based on marital status was made illegal under the Employment Equality Act 1977. Equal treatment on grounds of gender has been since then, required by law. It is now unlawful for an employer to require a particular gender for obtaining a job or a promotion. It has 5

ibid 23. Judith Harford and Jennifer Redmond, ‘I am amazed at how easily we accepted it’: the marriage ban, teaching and ideologies of womanhood in post-Independence Ireland’ (2021) 33 Gender and Education 186,187. 7 ibid. 8 ibid. 6

Living and Working in Ireland been rare for cases involving blatant gender discrimination in the workplace to come before the Courts, however, there have still been many cases which involve pregnancy discrimination, indirect discrimination and discrimination on family status. 9 Gender discrimination claims still arise in the context of a complainant challenging an interview or selection process. 10 In South Eastern Health Board v Burke11, the claimant alleged bias against her as a female compared to the other candidate interviewed, who was male. The Labour Court found an inference of discrimination. Where this happens, the onus shifts to the respondent to prove that equal treatment was present. In Sheehy Skeffington v National University of Ireland Galway12, a promotion was challenged. The claimant established a prima facie case of discrimination. Given that the university then failed to rebut this, the Equality Tribunal found in favour of the claimant. In Dublin City University v Horgan13 the Labour Court set out a list of factors which should be considered when determining if the burden shifted to the respondent has been discharged. What these cases highlight is the development of the law since the removal of the marital bar. Although issues in relation to women in the workplace remain, such as promotional processes, it is clear that the legal landscape has vastly changed and it is not the same as it was 100 years ago. Marital Rape Although rape was criminalised in Ireland, it was still legal for a man to rape his wife until the 1980s. Historically, it was believed that an unruly wife could wreak ‘havoc in the home and society’. 14 Legally speaking, there were three legal fictions underpinning marital rape in the common law: women as chattel, couverture and/or the unities theory. If women were treated as chattel and thus the property of men, then the husband who raped his wife was seen as using his property. The legal status of a married woman was called ‘couverture’, meaning that a wife had no legal rights apart from the ones she shared with her husband. The unities theory saw a husband and wife as one entity, so a 9

Maeve Regan and Ailbhe Murphy, Employment Law (2nd edn, Bloomsbury Professional 2017). ibid. 11 EDA041 (12 January 2004). 12 [2015] 26 ELR 95. 13 EDA0715/2007. 14 Melisa J Anderson, ‘Lawful Wife, Unlawful Sex – Examining the Effect of the Criminalization of Marital Rape in England and the Republic of Ireland’ (1998) Georgia Journal of International and Comparative Law 139,142. 10

Living and Working in Ireland wife was not recognised as a person in her own right in the eyes of the law. It has been argued that the ‘modern’ concept of the exclusion of marital rape as a crime started from a comment made by Sir Matthew Hale who stated that the husband cannot be guilty of rape against his wife due to a mutual matrimonial consent which the wife gives and which cannot be retracted. There was no legal authority for this and yet this statement influenced the ‘English based judicial systems for over two hundred years’. 15 Thus, a common law policy was formed. Even though Ireland gained its independence in the twentieth century, the country was still entrenched in the ideals set out by English common law. The Church also heavily strengthened the traditional roles of men and women in society, which can be also seen through divorce not being legalised until 1996. It was only in the 1990s that domestic violence was fully recognised as a problem. Domestic abuse was a growing statistic, and many women’s groups began to speak about this. The publicity was much bigger than before and many publicised cases came to the forefront, such as the nation’s first two cases of spousal rape. All these factors combined finally led to legislative changes and marital rape was criminalised in 1990 by the Criminal Law (Rape) (Amendment) Act. Before this, the common law exemption of marital rape was codified in accordance with England. 16 The first two cases of spousal rape will be called Case A and Case B, due to the fact that the case names are not obtainable. Case A reached trial in 1992. However, shortly after the wife gave her testimony, it was dismissed. It was alleged that the wife had lied regarding the motive of the attack. It went to a second trial in 1993, and the testimony was similar except that the wife admitted to having had three affairs. The judge instructed the jury that the 1990 Act did not recognise the spousal exemption anymore.17 Although this case failed, it has sparked a positive reaction in the Irish legal community. 18 The first marital rape conviction that was recorded in Ireland was in 2002. 19 Further legal developments in this area include the Domestic Violence Act 2018, which makes psychological or emotional abuse a criminal offence. Furthermore, the

ibid 148. ibid 139. 17 ibid. 18 ibid. 19 Anonymous, ‘First marital rape conviction recorded’ The Irish Times (Dublin, 19 July 2002) <https://www.irishtimes.com/news/first-marital-rape-conviction-recorded-1.1089006/> accessed on 24 February 2022. 16

Living and Working in Ireland Harassment, Harmful Communications and Related Offences Act 2020 makes it a criminal offence to make and distribute intimate images while causing harm. It is clear that Ireland still has much to do in the legal field to improve the lives of women living in Ireland. However, as highlighted above, legal developments have occurred, and the legal landscape looks vastly different than it did 100 years ago. It seems fair to say that the Ireland today is closer to the Ireland that the feminists of the newly created Irish Free State had envisioned.

Living and Working in Ireland

THE FUTURE OF EXAMINERSHIP IN IRELAND: AN ANALYSIS OF THE EVOLUTION OF EXAMINERSHIP AND ITS INCREASED IMPORTANCE POST COVID-19 Mollie Downes

Introduction The examinership procedure remains a critical mechanism in Irish corporate law. It provides ‘breathing space’1 to struggling businesses to restructure, seek new capital, preserve jobs and operations, as well as avoid liquidation or receivership. The attractive nature of the examinership process was highlighted by Clarke J who encouraged this restructuring mechanism as a process enabling ‘an enterprise to continue in existence for the benefit of the economy as a whole’.2 It allows a business to preserve jobs ‘which may be at stake’3 and to maintain a business ‘for the benefit of the community’. 4 This essay aims to highlight the evolution of examinership through the development of legislation and significant case studies, as well as providing a focus on the evolving nature of examinership post COVID-19. The Concept of Examinership and its Purpose Within Corporate Law Examinership is the restructuring system in the EU that is most similar to Chapter 11 of the US Bankruptcy Code.5 The US Bankruptcy Code is widely regarded as the most powerful tool for US corporations. It has been greatly relied upon during the recent public health crisis where companies have suffered economic troubles due to COVID19. Examinership was first introduced following the collapse of Goodman International caused by the outbreak of the First Gulf War. 6 This process of court protection was part of a series of procedures focused on updating and modernising the entire landscape of

Re Atlantic Magnetics Ltd [1993] 2 IR 561. Re Traffic Group Limited [2008] IR 253. 3 ibid. 4 ibid. 5 US Bankruptcy Code, Chapter 11. 6 G. Brian Hutchinson, Keane on Company Law (5th edn, Bloomsbury Professional) [37.01]. 2

Living and Working in Ireland company law in the 1990s in order to attract investment from the US. 7 It was first introduced in The Companies (Amendment) Act 1990.8 Some of the key provisions were strongly criticised from the outset by the Report of the Company Law Review Group 1994.9 It argued that although examinership appeared to be a useful mechanism which should be available in Irish company law, there should be limits to the availability of this process.10 Thus, the suggestions of the report were subsequently implemented by the Companies (Amendment) (No 2) Act 1999. 11 The process of examinership was codified in Part 10 of the Companies Act 2014 12 which incorporated the previous Acts and included a new provision to allow an application to be made to the Circuit Court for the appointment of an examiner to improve access for small companies.13 The 2014 Act provides the necessary threshold that must be met in order to be suitable for the examinership process. Firstly, the company must be or likely to be unable to pay its debts.14 Secondly, there must be no winding up procedure currently taking place15 and finally, there must be a ‘reasonable prospect’16 of the survival of the company.17 The application for the appointment of an examiner may be petitioned by the company, directors, creditors, or members with 10% shareholding. 18 This petition must be accompanied by the report of an independent expert to inform the court whether in the independent expert’s opinion, the company has a reasonable prospect of survival. Recommendations as to how the company will continue trading and return to viability

Irene Lynch Fannon, Jennifer LL Gant, ‘JCOERE Judicial Co-Operation in the European Union: Insolvency and Rescue’ in Jennifer L Gant (ed) Harmonisation of Insolvency and Restructuring Laws in the EU (INSOL Europe 2020) 107-119. 8 The Companies (Amendment) Act 1990. 9 First Report of the Company Law Review Group, December 1994. 10 ibid. 11 The Companies (Amendment) (No 2) Act 1999. 12 The Companies Act 2014, Part 10. 13 Companies (Miscellaneous Provisions) Act 2013. 14 The Companies Act 2014 Section 509(1)(a). 15 The Companies Act 2014, Section 509(1)(b). 16 Re Atlantic Magnetics Ltd (n 1). 17 The Companies Act 2014, Section 509(1)(c). 18 The Companies Act 2014, Section 510(1). 7

Living and Working in Ireland will also be proposed. Upon the court decision, the examinership is usually concluded on the basis that it was accepted or rejected by the court.19 Where the court appoints an examiner, the company is deemed to be under the protection of the court for a period of 70 days from the date of the presentation of the petition. This may be extended for a maximum of 30 days or subject to the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 which has extended this period to 150 days if the insolvency is COVID-19 related. The effects of this protection period means that creditors are prevented from taking any action to enforce any security of the company.20 As well as this, no winding up procedures may commence21 a receiver cannot be appointed22 and there may be no attempt to repossess goods subject to hirepurchase clauses.23 It is clear that the legislation relating to examinership is extensive and has evolved greatly since its first introduction in 1990. The Process of Examinership Today From a European Union Law perspective, examinership has been considered as the main insolvency proceeding for the purpose of avoiding liquidation and receivership. However, it is important to note that the court has discretion over the suitability of a company for the examinership process. This discretion can prove difficult for some companies especially in recent times as the court has the power to refuse examinership for struggling companies. In Re New Look Retailers24 the petition was brought forward when the company was not insolvent at the time of the application but was likely to become insolvent in the near future. Although the court found that the application fell within the scope of Section 509(1)(a)25McDonald J held that in the circumstances, it was ‘entirely premature to consider the appointment of an examiner’26, as the company had not considered less drastic options such as negotiations with the landlords. Similarly, in the case of Re Ina’s

Fannon and Gant (n 7). The Companies Act 2014, Section 520(4)(d). 21 The Companies Act 2014, Section 520(4)(a). 22 The Companies Act 2014, Section 520(4)(b). 23 The Companies Act 2014, Section 520(4)(e). 24 Re New Look Retailers (Ireland) Limited [2020] IEHC 514. 25 The Companies Act 2014, Section 509(1)(a) 26 ibid. 20

Living and Working in Ireland Kitchen Desserts Limited the company fell within the scope of section 509(1)(a).27 However, the petition was dismissed as one of the company’s main creditors, Starkane Limited, opposed the petition. Thus, examinership was found to be the inappropriate remedy due to these objections. Additionally, the examinership process has continued to be criticised as the process is not easily available for small companies due to a number of factors such as the specific advice required, the abundance of necessary applications and also the extensive cost. 28 There have been numerous suggestions to rectify these criticisms. For example, the Preventative Restructuring Directive (PRD)29 envisages a relaxation of court involvement where it is ‘necessary and appropriate to do so’30 while ‘ensuring the rights of any affected parties’31. Judicial discretion is often a key factor when applying the viability test under Irish law, thus this optional test under the PRD could improve the accessibility of the process for small and micro companies. Secondly, The Companies (Rescue Process for Small and Micro Companies) Act 202132 introduces an administrative process which is designed to operate within minimal judicial oversight. This procedure represents an attempt to bring the benefits of the examinership process without the tedious application process. Furthermore, these aforementioned processes could be useful additions to Irish company law. Examinership and COVID-19 COVID-19 has presented enormous challenges for previously thriving companies. The pandemic has ‘paralysed the whole economy’33 forcing countries around the world to take emergency responses. Though COVID-19 continues to negatively impact businesses, it should not result in the forced closure of an abundance of companies. 34

The Companies Act 2014, Section 509(1)(a) J. Ensor, R. Ambery, “COVID-19 and Examinership “What the Examiner Wants You to Know”” [May 2020] <https://www.dilloneustace.com/legal-updates/covid-19-andexaminership-what-the-examiner-wants-you-to-know> Accesssed March 11 2022. 29 Preventative Restructuring Directive 2022. 30Lynch Fannon and Grant (n 7). 31 Preventative Restructuring Directive 2022, Article 4(6). 32 The Companies (Rescue Process for Small and Micro Companies) Act 2021. 33 Ghio E and others, ‘Harmonizing Insolvency Law in the EU: New Thoughts on Old Ideas in The Wake Of The COVID-19 Pandemic’ [2021] 30 International Insolvency Review 34 A & L Goodbody, “Saving viable businesses- a look at restructuring options in the current environment” [2020] <https://www.algoodbody.com/files/uploads/news_insights_pub/COVID28

Living and Working in Ireland Furthermore, protective legislation has been introduced to assist companies in these testing times such as The Strategic Banking Corporation of Ireland Covid-19 Working Scheme35, The Covid-19 Business Loan from Microfinance Ireland, and the National Covid-19 Income Support Scheme36. Notably, the Companies Miscellaneous Provisions (Covid-19) Act 202037 has been introduced to allow examiners to apply to the court to extend the protection period up to 150 days from the current 100 days. This legislative addition to the examinership process has been a welcomed introduction for distressed companies in securing future viability and avoiding liquidation. It is clear that the process has continued to be underutilised for numerous reasons. 38 It could be said that businesses fail to receive adequate advice or exposure to examinership and thus, they are unaware of the beneficial effects that can emanate from this procedure. It could also be said that the corporate world has an issue with reaching out for help. Nevertheless, if there was an increased number of success stories, the process could perhaps be normalised. The corporate world could emphasise the idea that attempting to rescue a business first is more beneficial than immediately winding up a business even if at first glance it seems to be the easier solution. Thus, it is unclear whether the COVID-19 pandemic has changed the examinership procedure forever. Perhaps the unprecedented times have changed consumer behaviour and the corporate world for good. It is unclear how consumers, the Government, the Revenue Commissioners, or the Banks will react to the economic effects that COVID19 has had on the businesses of Ireland. Therefore, companies’ circumstances will have to be assessed on a case-by-case basis to ascertain which insolvency mechanism is best suited to individual companies39 due to the ever-evolving nature of COVID-19.

19_Saving_viable_businesses_%E2%80%93_a_look_at_restructuring_options_in_the_current_ environment.pdf>Accessed11 March 2022. 35 The Strategic Banking Corporation of Ireland COVID-19 Working Scheme. 36 The National COVID-19 Income Support Scheme. 37 The Companies Miscellaneous Provisions (Covid-19) Act 2020. 38Ashling Walsh, Michael Quinlan and Mark Costello, ‘Examinership – an underutilised option for vulnerable but viable companies’ <www.rdj.ie/insights/examinership---an-underutilisedoption-for-vulnerable-but-viable-companies?s=0.717921850419> Accessed 7 March 2022. 39 ibid.

Living and Working in Ireland Conclusion The COVID-19 pandemic has had a significant economic impact, and few are immune to this impact. Inevitably, this acute disruption has had a significant impact on businesses with many popular Irish retail chains going into liquidation. The economy of Ireland has faced challenges and obstacles over the last 20 years with the recession of 2008 and the recent COVID-19 pandemic leading to severe business interruption. It is clear that business owners have learned from these unprecedented times which will aid their future decisions in relation to their business. The examinership process as well as the introduction of new legislation has been a great relief for struggling businesses, and it certainly continues to be a ray of hope in these unprecedented times.

Living and Working in Ireland

DEVELOPMENT OF IRELAND’S DOMESTIC VIOLENCE LAW SINCE THE IRISH FREE STATE Robert Foyle

Introduction At the beginning of the Irish Free State, there was minimal state intervention in cases of domestic violence. Domestic issues were thought to be best dealt with in the home. However, since the Family Law (Maintenance of Spouses and Children) Act 1976, Ireland has continued to expand its domestic violence law, creating a robust set of protections. There are currently numerous categories of people who may apply for civil remedies and measures such as the Emergency Barring Order have been introduced. 1 Further, the definition of what constitutes domestic violence has been expanded with the introduction of the offence of Coercive Control2 and perpetrator programmes have been made an option to effect long term behavioural change in abusers 3. These represent a positive change which better supports victims of domestic violence in modern day Ireland. 1922-1976 The first five decades of the Irish Free State saw little protection for victims of domestic violence. Marital violence was seen as a matter to be dealt with within the family unit.4 The importance of the family was reiterated in Article 41.1.1° of the Constitution of Ireland in 1937 where the family is provided with ‘inalienable and imprescriptible rights, antecedent and superior to all positive law’. This afforded the State a limited scope to intervene in the autonomy of the family. Therefore, governmental services such as perpetrator programmes (which are designed to improve or change behaviour of abusers) were not enforced by the State. This protection of the family unit also prevented the State from enforcing civil remedies such as barring orders which remove the abuser

Domestic Violence Act 2018, s 9(1). ibid s 39. 3 ibid s 29(1). 4 Louise Crowley, Family Law (1st edn, Round Hall 2013) chp 13.02. 2

Living and Working in Ireland from the home to ensure the safety of the victim.5 Thus, it was exceedingly difficult for abused wives to escape their husbands. There was also no access to divorce facilities. Cultural, economic and social pressures prevented abused spouses from seeking marriage separation. 6 Abused spouses could, in certain instances, turn to the Gardaí for short term relief and could prosecute on assault charges.7 Some reports suggest that some abused wives could attempt to have their husbands committed to mental asylums. Committal to these institutions was generally initiated by the family against other particularly violent family members. 8 However, attempting to commit an abusive spouse or partner was not an effective measure at dealing with the issue of domestic violence as these asylums were not designed for domestic violence perpetrators and did not attempt to change violent behaviour. Parish priests also provided marriage counselling and the Catholic Church played an important role within the marital and family unit.9 However, cultural factors meant both priests and members of the Gardaí worked under the assumption that the marital couple should stay together.10 This lack of proper intervention in instances of domestic violence did not provide any support to domestic violence victims nor prevent further instances of abuse on a long-term basis. For unmarried cohabitating partners, practically no recourse or state intervention existed other than criminal law remedies. 1976-2018 Notwithstanding Ireland’s historical reluctance to intervene in matters within the family sphere; s22 of the Family Law (Maintenance of Spouses and Children) Act 1976 introduced the first civil remedy for victims of domestic violence; the barring order. 11 The Act allowed the Court to remove the abusing spouse from the place they resided for a period of three months where there were reasonable grounds for believing that the safety or welfare of the applicant spouse required it.12 S22 did not include non-married couples. The remedies available to abused spouses were enhanced by the Family Law

Louise Crowley, 'Domestic Violence Law in Ireland' (2017) 2017 Int'l Surv Fam L 145, 147. Cara Diver, Marital Violence In Post-Independence Ireland, 1922-96 : ‘A Living Tomb For Women' (Manchester University Press 2019) 108. 7 ibid 117. 8 ibid 115. 9 ibid 117. 10 ibid. 11 Family Law (Maintenance of Spouses and Children) Act 1976, s 22. 12 ibid. 6

Living and Working in Ireland (Protection of Spouses and Children) Act 1981. Under s2, the duration of a barring order was extended to a maximum of 12 months.13 The 1981 Act added further safeguards such as the Protection Order. This is an order issued by the court where there are reasonable grounds for believing that the safety and welfare of the applicant spouse or child is at risk. 14 It prohibits the respondent spouse from using or threatening to use violence against the applicant spouse or the child and is effective until a court hearing for the application of the barring order. Whilst these increased protections were a step forward at tackling the issue of domestic violence, it remained limited due to a high evidentiary threshold required and unmarried couples were excluded from the provisions. The Supreme Court decision in O’B v O’B15 displayed this high evidentiary threshold imposed on the applicant spouse. The case concerned a barring order under the 1981 Act. Griffin J noted the husband’s behaviour in his dissenting judgment.16 His conduct included taking control over their finances and forbidding his wife to open or pay bills. He humiliated her in front of their young children, referring to her as a ‘lazy slut’ and exercised control over the family by refusing to allow the children or his wife to visit the grandparent.17 The majority of the judges refused to grant the barring order with O’Higgins CJ noting that an order is only available in cases of ‘serious misconduct’. 18 The court viewed domestic violence solely through the lens of physical abuse and threats of violence and failed to consider coercive or controlling behaviour as an equally serious form of domestic abuse. The domestic violence Act 1996 made numerous additions including extending the categories of people who could apply for a barring order beyond marital spouses. A person who has lived with the respondent as husband or wife for 6 of the 12 months immediately prior to the application; a parent of the respondent where the respondent is aged 18 or over and is not dependent upon the parent and a person aged 18 or over residing with the respondent in a non-contractual relationship; could now all apply for relief.

Family Law (Protection of Spouses and Children) Act 1981, s 2(1)(b). ibid s 3. 15 O'B v O'B [1984] IR 182. 16 ibid 195. 17 ibid. 18 ibid at 190. 14

Living and Working in Ireland 2018-Present Key changes were made to Ireland’s domestic violence law in the Domestic Violence Act 2018. S39 creates a criminal offence where a person knowingly or persistently engages in behaviour that is controlling or coercive which has a serious effect on the victim.19 The introduction of coercive control into Irish law acknowledges the developing definition of domestic abuse. As Crowley notes, the addition of the offence of coercive control is ‘regulatory shift away from the traditional and limited perception of physical abuse.’20 It provides victims of domestic violence with increased protections against many forms of domestic violence and ‘having a wide-ranging offence that encompasses the many forms of abuse is the only effective way of capturing the broad behaviour designed to destroy personal autonomy.’21 S 29(1) of the Domestic Violence Act 2018 allows the court, when granting either a barring or safety order, to direct the respondent to engage with services to address issues relating to the respondent's behaviour which may have contributed to the granting of the order.22 One of these services listed is the domestic violence perpetrator programme. Such programmes are generally designed to effect behavioural change in perpetrators in order to minimise the number of repeat offenders.23 Ireland has historically focused on a retribution rather than a rehabilitation approach to perpetrators of domestic violence.24 S 29 is a welcomed revision to this approach. The Emergency Barring Order (EBO) was also introduced in s9 of the Act.25 This order is available to numerous categories of domestic violence victims who may not be the spouse or civil partner of the respondent but have lived with them as part of an intimate relationship. The order removes the respondent from the property for up to 8 days.26 A greater or equal beneficial interest in the property is not required to obtain this order

Domestic Violence Act 2018, s 39(2). Crowley, 'Domestic Violence Law in Ireland' (n 5) 146. 21 Darragh Sheehy, 'Toward a New 'Measuring of Harm': A Critique of the Offence of 'Coercive Control' under the Domestic Violence Act 2018' (2019) 10 King's Student L Rev 51, 57. 22 Domestic Violence Act 2018, s 29(1). 23 Leah Hamilton, Johann A. Koehler and Friedrich A. Lösel, 'Domestic Violence Perpetrator Programs In Europe, Part I: A Survey Of Current Practice' (2012) 57 International Journal of Offender Therapy and Comparative Criminology 1090. 24 Louise Crowley, 'Domestic Violence Law in Ireland' (n 5) 164. 25 Domestic Violence Act 2018, s 9(1). 26 ibid s 9(3). 20

Living and Working in Ireland unlike previous forms of barring orders.27 The EBO has prioritised the safety of victims of domestic violence over property rights and is a recognition that domestic violence occurs outside the marital relationship. The EBO has received some academic criticism due to the high evidentiary threshold placed on the applicants.28 The court must be satisfied that 'there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or a dependent person if the order is not made immediately.'29 The National Women’s Council also questioned the lack of effective remedies available when the courts are not sitting and urgent intervention is needed. 30 Conclusion The Domestic Violence Act 2018 is a clear modernisation of Ireland’s domestic violence law. From very few measures designed to support victims from abuse in the early and mid-20th century, Ireland now has a robust set of measures to tackle the issue. From extending the categories of those who can apply for relief to putting in place perpetrators programmes and creating the emergency barring order, Ireland’s domestic violence law now reflects the modern day intolerance of domestic violence.

ibid s 9(2). Crowley, 'Domestic Violence Law in Ireland' (n 5) 162. 29 Domestic Violence Act 2018, s 9(3). 30 Orla O'Connor, 'NWCI Welcomes The Domestic Violence Bill, But Says It Fails To Meet The Extent Of The Problem » Latest News » The National Women's Council Of Ireland' (Nwci.ie, 2017) <https://www.nwci.ie/news/article/nwci_welcomes_the_domestic_violence_bill_but_says_it_fa ils_to_meet_the_exte> accessed 23 February 2022. 28

Living and Working in Ireland

THE BLURRED LINES OF PALLIATIVE CARE: END-OF-LIFE CARE IN THE ABSENCE OF LEGISLATIVE CLARITY Ciara Coughlan

Assisted dying1 has become a topic of discussion once again in Ireland, following the unsuccessful Assisted Dying bill,2 and the recent legalisation of assisted suicide in Spain3 and New Zealand.4 The debate on whether a similar law should be enacted in Ireland has stirred up emotion, and has attracted strong arguments on both sides. However, in the absence of legislation from the Oireachtas, legal principles established in controversial cases continue to apply to patients and their families facing end of life decision making. This article seeks to add to the discussion by analysing the scope of this case law and assessing the implications for end-of-life care in the continued absence of legislative clarity. The right to life is protected by Article 40.3° of the Constitution and is considered to be one of the fundamental rights guaranteed by the State. 5 This right was afforded a supplementary degree of protection by the European Convention on Human Rights, which has been incorporated into Irish law since the promulgation of the European Convention on Human Rights Act 2003.6 Euthanasia and assisted suicide are criminalised under section 2(2) of the Criminal Law (Suicide) Act 1993. 7 There has been much debate over the years as to whether this blanket ban represents the State’s commitment to their duty to protect the life of the individual or is rather an encroachment on the personal life of the individual who wishes to pass away. 8 When faced with these issues, the Court is tasked with regulating complex medical,

Assisted suicide is defined as ‘the act of intentionally providing another person with the knowledge or means to end his or her life, at his or her request’ for the purpose of this article. 2 Dying with Dignity Dáil Bill 2020. 3 Bill No. 46-7 on the Organic Law to Regulate Euthanasia (Spain). 4 End of Life Choice Act 2019, s2 (New Zealand). 5 Re Ward of Court (withholding medical treatment) (No. 2) [1996] 2 IR 79. 6 European Convention on Human Rights Act 2003 s1(2). 7 Criminal Law (Suicide) Act 1993, s2. 8 Rachel Gaffney, ‘Regulating Life, Death and Choice’ (2021) 10 Kings Inn Law Review 20. 1

Living and Working in Ireland constitutional, and ethical decisions that present profound moral and philosophical issues.9 The Irish Courts first broached the topic in Re Ward of Court10 where the courts firmly denied the existence of a right to die as an implicit element of the right to life under article 40.3°.11 The case concerned a ward of court who had been living in a near persistent vegetative state (PVS) for 23 years, who wished to withdraw treatment. In his judgment, Hamilton CJ stated that the right to life implies the right to have nature take its course and to die a natural death, and not to have life artificially maintained unless the individual so wishes. Upholding the High Court decision, the Supreme Court held that the withdrawal of hydration and nutrition would not amount to unlawful killing, as it would not constitute a positive act but rather amounted to an omission to struggle12. The decision was based on a test that assessed the best interest of the ward, whilst staying within the parameters of the constitution.13 The court firmly stated that this case was not about euthanasia, which remains unlawful, and was confined only to the natural process of dying.14 The decision established that a competent patient does not have a right to die, but in appropriate circumstances the courts may authorise a course of action short of active euthanasia intended to bring about the death of a ward of court.15 However, in the wake of the decision, questions were raised as to the difference between the legal and medical definition of euthanasia. Was euthanasia to be understood only as an action which leads to the death of another or can an omission also constitute euthanasia?16 There was also a call for the legislature to provide clarification on the distinction between medical treatment, the withdrawal of nutrition and the palliative administration of drugs which may result in death.17

Re Ward of Court (n 5). ibid. 11Art 40.3.2°. 12 Finn Keyes ‘Children’s Rights and End of Life Decision-making: In the Matter of JJ’ (2021) 5(1) Irish judicial Studies Journal 58. 13 Claire Tunissen, ‘Re A Ward of Court’ (1995) Medico-Legal Journal of Ireland 1(2) 61. 5 14 Denis Cusack, ‘Re A Ward of Court: Medical Law and Medical Ethics Diverge, a MedicoLegal Analysis’ (1995) 1(2) Medico-Legal Journal of Ireland 43. 15 Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution (5th edn, Bloomsbury Professional 2018). 16 Gaffney (n 8) 20. 17 Adam McAuley and David Tomkin, ‘Re A Ward of Court: Legal Analysis’ (1995) 1(2) MedicoLegal Journal of Ireland 45. 10

Living and Working in Ireland The existence of a right to die as a corollary of the right to life was raised again in Fleming v Ireland.18 Marie Fleming, a mentally competent woman in the final stages of multiple sclerosis, challenged the constitutionality of the blanket prohibition on assisted suicide and sought a declaration that section 2(2) of the 1993 Act was incompatible with the European Convention on Human Rights (ECHR). The Supreme Court dismissed these claims on appeal, citing Hamilton CJ in stating that no person has the right to terminate, or have terminated, his or her life.19 The distinction drawn here between palliative care and assisted suicide was based on intention; the purpose of administering palliative care is to alleviate pain, which can accelerate death, while in the case of assisted suicide, the intention is to cause death.20 This is often described as the doctrine of double effect, which ’distinguishes between the consequences a person intends and those that are unintended but foreseen.’21 In the context of end of life care, the doctrine of double effect can justify the administering of palliative care that hastens death, if the purpose of that treatment is to alleviate pain and not to cause the death of the patient. 22 The shortcomings of the doctrine of double effect were flagged in the recent case of In the Matter of JJ.23 Here, the Supreme Court dismissed the appeal, and allowed a hospital to withhold lifesaving interventions in certain circumstances The case involved a young boy with permanent devastating brain injuries who was experiencing dystonia, which caused prolonged and painful involuntary contractions of the muscles. 24 The dystonic episodes were treated with pain relief administered by an injection. However, this drug repressed his respiratory function, and physical intervention was often required to save his life. Having witnessed this vicious cycle for over a month, the medical team made an application to the High Court to allow them to treat John in the manner that they believed was in John’s best interest. The hospital’s care plan consisted of a combination of acts and omissions that combined would likely result in death; the hospital would 18

[2013] IESC 19, [2013] 2 IR 417. Re Ward of Court (withholding medical treatment) (No. 2) [1996] 2 IR 79. 20 Fleming v Ireland (n 18) [52]. The Court relied on a decision of the Canadian Supreme Court in support of this distinction: Rodriguez v. British Columbia AG [1993] 3 S.C.R. 519. 21 Glenys Williams, “The Principle of Double Effect and Terminal Sedation” (2001) 9 Medical Law Review 41. 22 Keyes (n 12) 58. 23 In the Matter of JJ [2021] IESC 1. 24 Mayo Clinic ‘Dystonia’ <https://www.mayoclinic.org/diseasesconditions/dystonia/symptoms-causes/syc20350480#:~:text=Dystonia%20is%20a%20movement%20disorder,your%20body%20(general %20dystonia)/> accessed on 02/03/2022. 19

Living and Working in Ireland administer pain relief to ease the dystonic pain experienced (a positive act), with the knowledge that respiratory distress would ensue as a result of the pain relief. The medical team wished to then withhold mechanical ventilation (an omission), resulting in death.25 The courts quickly dismissed the argument by counsel for the boy’s parents that the course of action sought by the medical team amounted to an impermissible acceleration of death and, thus, euthanasia. Keyes, in analysing the decision, criticised the fact that the two components of the treatment were addressed in isolation and in a reversed order, dealing with the omission first before looking at the positive act. In this way, he argued, the causal link was broken, and the reality that the omission was facilitated by the positive act was ignored. The court justified the act of administering pain relief with the knowledge that it would result in respiratory distress by reference to the doctrine of double effect. However, the court itself appeared to implicitly accept that the doctrine of double effect is an unsatisfactory basis for dividing the boundary between lawful and unlawful killing. 26 It was very much aware of the weakness in the philosophy that underlined its decision, but perhaps saw it as a necessary fiction in order to achieve a decision that focussed on the patient's best interest. We have seen how the courts have stretched themselves, and the philosophical reasoning that underpins its decisions, in order to ensure that patients’ best interests are prioritised. In Re Ward of Court the courts stated that it is only resolved to passive practices which allow nature to take its course. However, over 25 years later in Re JJ, it permitted a course of treatment that clearly contained a positive action which would ultimately lead to the patient’s death by dealing with the issue in a roundabout way. The courts have also been prepared to construe the concept of an omission broadly, which has been tolerated in a manner similar to the doctrine of double effect. 27 None of the judgments discuss what, if any intervention, should accompany the withdrawal of hydration and nutrition. The decisions also failed to outline how far it is legal for a doctor to administer non-therapeutic, palliative substances in end of life care.28 It is, however, clear that the court is prepared to twist itself in knots, and pronounce these

Keyes (n 12). ibid. 27 Ibid. 28 Cusack (n 14) 43. 26

Living and Working in Ireland legal fictions, in order to accommodate humane end-of-life practices as long as the prohibition on euthanasia remains a legal reality.29 End of life decision making raises issues of patient consent, autonomy, dignity, and quality of life. There remains huge unanswered legal, medical, and ethical questions that the courts did not avert, and it is only a matter of time before medical professionals and/or family members of patients appear before the courts with further queries.30 Over two decades have passed since Re Ward of Court came before the Supreme Court, and the call for clarity from the Oireachtas remains largely unmet.31 While we might not yet be ready to enact an assisted dying bill in Ireland, there is an obvious need for legislation to clarify the current state of the law. A holistic discussion, engaging all key stakeholders, is required when drafting this legislation to ensure that the standard of end of life patient care is not eroded. The law should provide clear guidance on decision making for palliative care, and clarity to families during what is already a deeply upsetting time.

Keyes (n 12). Cusack (n 14). 31 Gaffney (n 8). 30

Living and Working in Ireland

THE NEED FOR A CONSTITUTIONAL PROTECTION OF THE ENVIRONMENT Aisling Maloney

When reflecting upon the past hundred years of the Irish State, Ireland is ranked among the worst-performing developed countries for climate action both in the EU and globally. In 2020, the Climate Change Performance Index (CCPI) ranked Ireland 39th out of 57 countries when it came to responding to the climate crisis. 1 This article reviews the handling of the environmental crisis by the Irish State and highlights the need for an amendment that instigates a constitutional protection of the environment. Ireland’s environmental history is composed of three areas: changes to the environment that were caused by the actions of humans in the past, the effect that these changes have on Ireland today, and the attitude of the Irish government and citizens towards environmental matters. The purpose of this article is to demonstrate the need for an enumerated constitutional protection of the environment in the Irish Constitution. Recent Developments In the earlier half of the 20th century, Ireland had no legislation that related to the environment, like many other countries in Europe, but this has changed in recent decades with the introduction of eight acts that are focused on environmental matters: Environmental Protection Agency Act 19922, the Waste Management Act 19963, Minister for the Environment and Local Government (Performance of Certain Functions) Act 20024, Protection of the Environment Act 20035, Environment (Miscellaneous Provisions) Act 20116, Environment (Miscellaneous Provisions) Act 20157, Climate Action and Low Carbon Development Act 20158, and the Climate

Kevin O’Sullivan, ‘Ireland ranked among worst performers in 2020 climate rankings’, The Irish Times, 07/12/2020. 2 Environmental Protection Agency Act 1992. 3 Waste Management Act, 1996. 4 Minister for the Environment and Local Government (Performance of Certain Functions) Act 2002. 5 Protection of the Environment Act 2003. 6 Environment (Miscellaneous Provisions) Act 2011. 7 Environment (Miscellaneous Provisions) Act 2015. 8 Climate Action and Low Carbon Development Act 2015. 1

Living and Working in Ireland Action and Low Carbon Development (Amendment) Act 20219. Ireland currently has a developed system of environmental legislation that acts in accordance with directives set out by the European Union. In recent years, there has been a renewed focus on climate action and environmental action. In May 2019, Ireland became the second country in the world to declare a climate and biodiversity emergency, following the UK's similar declaration. 10The Irish government has introduced new policies and legislation regarding climate change and the environment that are designed to help the country transition a climate-neutral economy and lessen the effects of climate change. This included the crucial Climate Action and Low Carbon Development (Amendment) Bill 2021 11, which is meant to support Ireland’s goal of achieving a climate-neutral economy by no later than 2050. Ireland has also been involved in climate talks at an international and EU level, such as COP26, and has signed up to several international climate agreements, such as the 2015 UN Paris Agreement and EU Agreements. The Paris Agreement was signed by Ireland in 2015, and its terms included several measures aimed at halting global warming and reducing and reversing climate change. These agreements were designed to set Ireland on a path to a more sustainable future. However, Ireland failed to meet its overall renewable energy target for 2020 and had to pay a total of €50 million up to December 2020 for a ‘statistical transfer’ of renewable energy to make up for a shortfall in meeting targets. The causes of this failure were mostly due to Ireland’s reliance on fossil fuels for heating purposes, the agriculture industry, and the government's lack of action. Changes need to be made to prevent this scenario from happening again in the future. One of the most vital pieces of Ireland's environmental legislation is the Climate Action and Low Carbon Development (Amendment) Act 202112. This act set out a path to netzero emissions by 2050, which would mean that the amount of greenhouse gas that is being released into the atmosphere is equal to the amount that is being removed from the atmosphere. The Government is attempting to do this through carbon budgets, which is the allowance for how much carbon Ireland is allowed to emit within a five-year period. Each Minister will have their own targets to meet to reduce emissions, and Local Authorities will also have to create their own Climate Action Plans. The Minister for 9

Climate Action and Low Carbon Development (Amendment) Act 2021. Paul Cunningham, ‘Ireland becomes second country to declare climate emergency’10/05/2019, RTÉ, https://www.rte.ie/news/environment/2019/0509/1048525climate-emergency/. 11 Climate Action and Low Carbon Development (Amendment) Bill 2021. 12 Climate Action and Low Carbon Development (Amendment) Act, 2021. 10

Living and Working in Ireland Communications, Climate Action and the Environment passes regulations under the legislation providing the detail of the regulatory requirements, then enforces this environmental legislation along with the Environmental Protection Agency. While signing up to international agreements and introducing new policies is important, the only way out of this crisis is if this is followed up with instigating a constitutional protection of the environment, it has the potential to create more accountability for achieving these targets than acts and agreements. Still, there is the question of whether there is enough being done. Many climate activists believe that the government’s Climate Action Plan came too late, including the director of Friends of the Earth, who said that ‘This would have been a great plan if this was 10 years ago’13, and that more needs to be done soon to truly make an impact. Stronger, more detailed measures should be introduced and more should be done to hold Ministers and departments to account, such as setting stricter annual targets for their emissions and finding more sustainable ways to make progress. Although Ireland has signed up to several international agreements that set out targets for reducing emissions globally, the EU targets are binding, which means that countries can be fined for not meeting them, and this can cost the country millions of euros each year. Unfortunately, Ireland is consistently falling behind targets, which not only means losing out on millions of euros, but also putting our future at risk and making it harder to reach targets in the future. However, simply making these policies and signing these agreements hasn't been enough to solve the environmental problems that this country is facing, and therefore a constitutional protection of the environment should be in place. The climate crisis was not an issue when the Constitution of the Irish Free State and Bunreacht na hÉireann was first created, so it makes sense as to why this protection was not included in the first place. Now that it has become a serious issue, it is vital that it is included now. This is not a new concept, as other countries have already taken this step. Indonesia has introduced the right to a ‘good and healthy environment’ into its Constitution. 14 India has gone even further. Originally, the Indian Constitution did not contain any specific provisions for environmental protection or for the control of pollution. When India Caroline O’Doherty, ‘Environmental groups deliver devastating critique of the Government's Climate Action Plan’ (09 July 2019) < https://www.irishexaminer.com/news/arid30935772.html> accessed 28 February 2022. 14 Simon Butt and Prayeti Murharjanti, ‘The Constitutional Right to a Healthy Environment in Indonesia’ (2020) 33(1) Journal of Environment Law 33. 13

Living and Working in Ireland gained its independence in 1947, it then employed a range of regulatory instruments to preserve and protect its natural resources. Eventually, certain specific provisions were incorporated by the Constitution’s 42nd Amendment Act, 1976 15, and subsequent amendments. The Constitution of India played a significant role in protecting and preserving their environment, as it guaranteed the enforcement of any legal rights relating to the environment and provided compensation for damages caused to the environment. If this constitutional protection of the environment was implemented into Bunreacht na hÉireann, then it would do a great deal to improve Ireland’s environmental situation, since this would give the Courts the power to judicially review any legislation giving effect to the right. The leading case that discusses the need for a constitutional amendment to protect the environment is Friends of the Irish Environment v The Government of Ireland16 [2020]. In this case, the Supreme Court quashed the Government’s National Mitigation Plan as being ultra vires as it failed to comply with the standards that are required by the Climate Action and Low Carbon Development Act 2015. This was a key decision that received a lot of praise, as it is one of the few successful climate cases in Ireland. The Court found that there is no unenumerated right to a healthy environment in the Constitution, and so an explicit constitutional amendment needs to be implemented. This constitutional amendment would better reflect the increasing will of the Irish people to protect and preserve the environment. Conclusion Given how the right to environmental protection has been adopted and developed in other countries, it has the potential to play a significant role in the protection of our environment and, given that it was not included in the Constitutional Convention17 should at least be included in the next Citizens ‘Assembly. After examining how Ireland has handled the environmental crisis in the past, a written constitutional protection of the environment is of paramount importance if there is any chance of this country taking the necessary measures against climate change.

42nd Amendment Act of the Indian Constitution, 1976. Friends of the Irish Environment CLG v the Government of Ireland, Ireland and the Attorney General [2020] IESC 49. 17 Houses of the Oireachtas, ‘The Convention on the Constitution’ [2012], https://www.constitutionalconvention.ie/Documents/Terms_of_Reference.pdf 16

IRELAND AND THE UNITED KINGDOM

Ireland and the United Kingdom LABOUR AND INDUSTRIAL COURTS: DIFFERENT APPROACHES TO COLLECTIVE BARGAINING RIGHTS NORTH AND SOUTH Hernan Perez McKay

Introduction In light of the steady decline of trade union membership in Ireland and Northern Ireland over the past decades, it is worth examining the challenges faced by the labour movement in both jurisdictions. This paper will examine the process of recognition for the purposes of collective bargaining. The system of collective bargaining in the Republic of Ireland (ROI) is voluntary, while in Northern Ireland (NI) there is a process for unions and collective bargaining units to receive statutory recognition. However, both systems contain weaknesses that place employer groups in a stronger position than that of unions. This paper will discuss these weaknesses and compare the systems in the two jurisdictions. Collective Bargaining in the Republic The ROI has a hands-off approach to collective bargaining. While workers have a right to form or join a union, the Irish Courts have repeatedly ruled that it is voluntary whether an employer recognises that union or not.1 This effectively means that there is no right to collective bargaining. What exists instead is a system set up by legislation2 that on paper creates a ‘backdoor to recognition’3 and provides workplaces where unions are not recognised with a method of resolving disputes less extreme than industrial action. Rather than employer and union representatives leading negotiations, as is the practice in collective bargaining, both sides present their cases to the Labour Court, which makes a recommendation as to how the dispute should be resolved.4 In order for the Labour

Daryl D’Art, ‘Freedom of Association and Statutory Union Recognition: a Constitutional Impossibility?’ (2020) 62 Irish Jurist 82. 2 Industrial Relations (Amendment) Act 2001, Industrial Relations (Miscellaneous Provisions) Act 2004, and Industrial Relations (Amendment) Act 2015 3 Caroline Murphy and Thomas Turner, ‘Tipping the scales for labour in Ireland? Collective Bargaining and the Industrial Relations (Amendment) Act 2015’ (2020) 49(1) Industrial Law Journal 113. 4 Industrial Relations (Amendment) Act 2001, s 5. 1

Ireland and the United Kingdom Court to hear a dispute, the following criteria must be met: i.

There is no ‘excepted body’ independent of employers engaged in collective bargaining on behalf of its members. 5

ii.

The number of workers party to the trade dispute is ‘not … insignificant’.6

iii.

The Labour Court has not made a recommendation to the group of worker’s party to the dispute in the last 18 months,7 and the employer has implemented the recommendations or determinations issued by the Labour Court.8

If the employer does not abide by the Labour Court’s recommendations, a union can request they investigate the matter again and make a legally binding determination that the employer must follow.9 Collective Bargaining in Northern Ireland As in England and Wales, the right to form a trade union in Northern Ireland is accompanied by a statutory right to recognition and collective bargaining, as laid out in Schedule A1 of Employment Relations (Northern Ireland) Order 1999 and its amendments. If a union submits an application for recognition of a collective bargaining unit to their employer and their employer refuses to recognise the union, 10 an eligible union can apply to have the Industrial Court get involved in the negotiations. The Industrial Court will only accept applications of this nature if: i.

The proposed collective bargaining unit is not covered by another union,11 and no members are already part of a separate unit.12

Industrial Relations (Amendment) Act 2015, s 27 1B. ibid, s 28(b)(3). 7 ibid, s 28(b)(7). 8 ibid, s 28(b)(8); Ibid, s 28(b)(9). 9 Industrial Relations (Amendment) Act 2001, s 6; Industrial Relations (Miscellaneous Provisions) Act 2004, s 4. 10 The Employment Relations (Northern Ireland) Order 1999, sch 1A para 11; ibid, sch 1A para 12. 11 ibid sch 1A para 44. 12 ibid para 46. 6

Ireland and the United Kingdom ii.

At least 10% of the workers are members of a union or found to be in support of a union.13

iii.

The Court has not ruled that the union or unions applying are ineligible to represent workers in collective bargaining negotiations within the last three years.14

Once the Court has accepted an application, it will give the employer and the union time to come up with ‘an appropriate bargaining unit’ together. 15 If the Industrial Court decides that the two parties are unlikely to come up with one, it can provide its own unit.16 Once a bargaining unit has been decided on and accepted by the Industrial Court, and a majority of the workers in the unit are union members, it can declare that the union has the right to represent the unit for collective bargaining purposes. 17 However, if the majority of workers are non-union, or if the Industrial Court feels a vote is necessary in ‘the interest of good industrial relations’, it will order the union to hold a secret ballot on union representation before granting recognition.18 Comparison The system of third party resolution in the ROI places unions in a significantly weaker position than that of their NI counterparts. Labour Court recommendations and may only address ‘the totality of remuneration and conditions of employment’, 19 while in NI, bargaining parties may decide the subject of their negotiations. 20 The Labour Court may only make recommendations if they are satisfied that the wages and working conditions are inferior to those of ‘comparable workers’.21 However, they can base these comparisons on either unionised or un-unionised workplaces,22 potentially limiting the scope of any recommendations. While the conditions of other workplaces may be a factor in NI, it is in the context of negotiations between a union and an employer. There 13

The Employment Relations (Northern Ireland) Order 1999, sch 1A para 45. ibid para 48. 15 ibid para 18. 16 ibid para 4. 17 ibid para 22. 18 ibid para 23. 19 Industrial Relations (Amendment) Act 2015, s 30(1). 20 The Employment Relations (Northern Ireland) Order 1999, sch 1A para 3 (3). 21 Industrial Relations (Amendment) Act 2015, s 30(2). 22 Tony Dobbins, Niall Cullinane, and Brian Sheehan, ‘Ireland's conundrum on union bargaining rights: assessing the Industrial Relations Amendment Act 2015’ (2020) 51 Industrial Relations Journal 75. 14

Ireland and the United Kingdom is not a strict limit on what can be gained by workers, as in the ROI. It is also possible for an employer to prevent the Labour Court from resolving a dispute if it demonstrates that it practices collective bargaining with a non-union ‘excepted body’. The 2015 Amendment states that such must be independent of the employer, but it is entirely possible that employers will figure out how to create bodies under their influence that pass the ‘excepted body’ test in order to prevent disputes from reaching the Labour Court.23 No such exception exists in NI, where only unions may engage in collective bargaining.24 These factors severely limit what unions are able to achieve by using this dispute resolution mechanism. NI is not without its own issues. There is a right to collective bargaining in NI, and yet only 14 applications for union recognition have been made since 2015.25 For comparison, 37 applications were made from 2000 to 2007. 26 In his analysis of the legislation in the UK as a whole, Bogg points out that giving the Industrial Court discretion to call for a secret ballot even in instances where a workplace has majority union membership gives an employer time to engage in anti-union activities that may alter the outcome of the vote.27 This is a valid concern, but does not seem to apply to NI. The Industrial Court has only declined to grant recognition to a union on the basis of a ballot failure five times,28 and the majority of applications have resulted in a voluntary agreement between the parties or the Industrial Court granting the union recognition.29 This would seem to indicate that the decrease in applications comes from challenges facing the labour movement as a whole, rather than the specific process by which unions are recognised in NI. Despite this decline, unions in NI are clearly in a stronger position than those in the ROI for the purposes of collective bargaining. The difference in power can be seen in the disparity between union coverage rates: NI had a 53% union coverage rate as of 2020,30 23

Murphy and Turner (n 3). The Employment Relations (Northern Ireland) Order 1999, sch 1A para 6. 25 Northern Ireland Industrial Court list of declarations and decisions. https://www.industrialcourt.gov.uk/decisions-and-declarations-by-year accessed 9 February 2022. 26 ibid. 27 Alan Bogg, ‘The Death of Statutory Union Recognition in the United Kingdom’ (2012) 54(3) Journal of Industrial Relations 409. 28 IC02/01; IC11/02; IC31/06; IC72/17. 29 Northern Ireland Industrial Court list of declarations and decisions (n 25). 30 Paul Mac Flynn, ‘The Impact of Collective Bargaining on pay in Northern Ireland’, (2020) NERI Working Paper Series, 2020/N0 66. 24

Ireland and the United Kingdom while the ROI had a coverage rate of just 33.5% in 2021.31 The right to collective bargaining allows unions in NI to achieve far more than is possible under the Labour Court dispute resolution mechanism. The Labour Court can only issue recommendations relating to wages and conditions, and there is no guarantee that these recommendations would bring a non-union workplace to a union standard. This, combined with the excepted body rule, makes it difficult for unions to justify spending the time and resources required to make an application under this system. 32 Unions in the ROI prefer to apply for a non-binding recommendation under the Industrial Relations Act 1969 than use the 2015 Amendment for this very reason. 33 Only four applications have been made under the 2015 Amendment since it was passed, while 25 applications were made under the 1969 Act over the same period.34 Of those four applications, only two resulted in a recommendation from the Labour Court. 35 In NI, 14 applications for union recognition have been made since 2015. The benefits of being granted recognition by the Industrial Court and the bargaining power that come with it are far greater than a Labour Court recommendation, explaining why one system is used far more than the other. Conclusion Union organisation does not exist in a vacuum; employer groups are capable of using their resources to fight against union recognition, or even cut organisation efforts off at the bud. This is true in both the ROI and NI. However, the right to collective bargaining that exists in NI gives unions slightly more leverage. It is possible for them to be granted recognition by the Industrial Court if a majority of workers vote in favour of union representation. Unions in the ROI have no such option. In a situation where the majority of a workplace are union members and their employer refuses to recognise the union, their only recourse through law is to use the 2015 Amendment’s dispute resolution process. Unfortunately, the process is so limited in what it can achieve that it has only been successfully used twice in the seven years since it was introduced. The legislation

Alan Eustace, ‘Collective Benefit Harnessing the power of representation for economic and social progress’ (Fórsa 2021) <https://www.forsa.ie/wpcontent/uploads/2021/05/CollectiveBenefit.pdf> Accessed 11 March 2022. 32 Dobbins, Cullinane, and Sheehan, (n 22). 33 ibid. 34 ibid. 35 ibid. 31

Ireland and the United Kingdom has utterly failed to achieve its goal of creating a ‘backdoor to recognition’ within Ireland’s voluntarist system.

Ireland and the United Kingdom

NORTHERN IRELAND AND BREXIT Gráinne Popen

Introduction ‘Brexit’, an abbreviation for British Exit from the European Union, officially occurred on the 31st of January 2020. Roughly two years later, its irrevocable impact on international politics remains apparent. 2021 not only marked the first full year of Brexit, but also 100 years of partition between Northern Ireland and the Republic. This has slowly settled into an established legal doctrine and a dependable relationship between the Republic of Ireland, Northern Ireland, the European Union, and the United Kingdom. However, Northern Ireland has become a confounding variable in Brexit, raising profound legal and procedural challenges to contemporary political arrangements. Northern Ireland and the Republic are inextricably intertwined regions, making Brexit especially disruptive. Court cases, constitutional challenges, and political antagonisms serve as testimonies to the complex nature of Northern Ireland’s departure from the European Union. Status Quo Brexit is facilitated by the Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement, both signed in 2020.1 The legal mechanics of separation relied upon Article 50 of the Lisbon Treaty.2 The unique position of Northern Ireland is outlined by the Northern Irish Protocol, an agreement reached between the UK and the EU.3 Northern Ireland is considered “a place apart,” from the UK, resulting in severe political and socioeconomic detachment.4 Significantly, a 2016 EU membership referendum indicated that the majority of Northern Irish citizens would prefer to remain

1Agreement

on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2020] OJ L 29. 2 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306, Art 50. 3 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (n 1). 4 Mary C Murphy, Europe and Northern Ireland’s Future: Negotiating Brexit’s Unique Case (Agenda Publishing, 2018) 97–122.

Ireland and the United Kingdom within the EU.5 The protocol therefore leaves Northern Ireland in a unique position where both EU and UK law is applicable, which disturbs economic, political, and cultural arrangements. The UK has made numerous commitments to maintaining benefits and stipulations unique to EU membership. Crucially, one of the White Papers produced by the UK guaranteed ‘continued adherence to the constitutional framework, rights and institutions provided for in the Belfast Agreement’. 6 However, legal and political change becomes inexorable, raising complex quandaries. Constitutional Questions Some constitutional uncertainties have arisen as a result of Brexit. Although Northern Ireland does not have a codified constitution, the Northern Ireland Act of 1988 serves as the overarching framework for the Northern Irish government. The Northern Ireland Act of 1988, the basis of the Good Friday Agreement, is contingent on the UK’s membership of the EU, demonstrating that EU law is intrinsic to the very foundations of the Northern Irish State. Brexit reveals that Northern Ireland lacks autonomy in their relationship with the European Union.7 The separation of these entities poses a severe threat to democracy, as the UK is led to make decisions that contradict the Northern Irish constitutional law without regard to the interests of Northern Irish citizens. The precarious balance of authority between the EU and the UK and its constitutional implications has been tentatively codified. The Withdrawal Agreement provides that Northern Ireland remains de jure of UK customs, but de facto of EU customs.8 This dichotomy becomes the general rule when considering division of powers. Although the UK would like for Northern Ireland to be estranged from the EU, it is near impossible given the structure of the Northern Irish state. Thus, Northern Ireland is nominally distinct, but in practice, still closely linked to the EU. For example, Northern

Government of the.United Kingdom , ‘EU Referendum’ <https://www.gov.uk/government/topical-events/eu-referendum/> Accessed 11 March 2022. 6 Department for Exiting the European Union, The United Kingdom’s Exit From and New Partnership With The European Union (GOV.UK, 2 February 2017) < <https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-newpartnership-with-the-european-union-white-paper/>. 7 Jonathan Tonge, ‘The Impact and Consequences of Brexit for Northern Ireland’ (Policy Department C: Citizens’ Rights and Constitutional Affairs European Parliament, 2017) < <https://www.europarl.europa.eu/RegData/etudes/BRIE/2017/583116/IPOL_BRI(2017)583116 _EN.pdf/>. 8 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (n 1) Arts 4 and 5. 5

Ireland and the United Kingdom Ireland will still receive money from the EU through PEACE and INTERREG, despite the UK insisting upon its financial independence from the EU. 9 The European Court of Justice will continue to hold influence, especially with regard to the enforcement of protocol.10 Furthermore, Irish citizens within Northern Ireland retain the rights of EU citizens.11 It is evident that the UK will never be fully removed from the EU as long as Northern Ireland remains a territory of the UK. However, the Withdrawal Agreement creates a means by which further separation can occur. Article 18 indicates a democratic consent process where the Northern Irish government can ostensibly suspend aspects of EU intervention.12 This democratic consent process will be held in 2024, meaning that further severance could be imminent. It would be unlikely as the Northern Ireland Assembly dismissed Brexit in conjunction with the Welsh Assembly and the Scottish Parliament.13 Case Law The most recent case addressing these issues was McAllister v Secretary of State for Northern Ireland.14 The case, heard in the Northern Ireland High Court, considered the issue of judicial review. Colton J delivered the judgment on the validity of the Protocol by relying on legal precedents of The Acts of Union 1800, s.1 of the Northern Ireland Act 1998 (‘the 1998 Act’), s.42 of the 1998 Act, the Protocol and its intersections with the European Convention on Human Rights (‘ECHR’). Mr Peeples, contended the Good Friday Agreement could constitute domestic Northern Irish law. However, the focal point of the discussion and decision remained on McAllister. The plaintiff reasoned that the Protocol was invalid insofar as it was incompatible with the Acts of Union. In adjudicating this scenario, Colton J noted that the protocol did infringe upon the ‘same footing’ clause of the Acts of Union.15 The Judge proceeded to note that the Withdrawal Acts would have interpretative supremacy.16

ibid, Preamble. ibid, Article 12. 11 ibid, Article 2. 12 ibid, Article 18. 13 BBC News “Brexit: Welsh Assembly joins Holyrood and Stormont in Rejecting Bill” (21 January 2020) < https://www.bbc.co.uk/news/uk-wales-politics-51181641/> 14 McAllister v Secretary of State for Northern Ireland [2021] NIQB 64. 15 ibid. 16 ibid. 10

Ireland and the United Kingdom The second argument concerned s.1 of the 1998 Act. The Act includes a mechanism whereby Northern Ireland could be unified with the Republic. Immediate legal quandaries arise regarding the conflicts of Brexit and this provision. It was found that s.1 did not infringe the guarantee of consent since it was a matter separate to the Northern Irish Constitution.17 Therefore, this ground was rejected. The third issue of law concerned s.42 of the 1998 Act, as outlined by the 2020 Regulations and Domestic Consent.18 The authority of Articles 5-10 were called into question. Typically, the Northern Irish Assembly would have a majority vote on their continued application. The 2020 Regulations amend the original Acts by ensuring that claims under the Northern Ireland Act cannot interfere with the Articles of the Protocol. This ground was ultimately refused because the Secretary of State had been given the ability to exert jurisdiction over implementation.19 The fourth argument centred on the ECHR, Article 3 Protocol 1 concerning the matter of free elections as a basic principle of democracy. Applicants pointed out that Northern Ireland had no electoral influence over Brexit. However, judicial review was denied, seeing as the protocol was produced by a democratic parliament. 20 Obliging the democratic will of the UK Government satisfied the impulse for democratic consent dictated by the ECHR. The fifth concern related to EU Law and the Treaty on the European Union (‘TEU’), specifically articles 10 and 50.21 Article 50, although outlining the basis for withdrawal, neglected to reference future developments and agreements. It was argued that the Withdrawal Agreement breached the TEU itself using Northern Ireland’s unique status as a justification. However, the law and relevant analysis of the fourth question involving the ECHR was applied to the TEU and it was found that the Withdrawal Agreement did not infringe upon any existing EU law. Colton J ultimately favoured the Withdrawal Agreement over potentially compromising precedents.22 Time will tell whether the Protocol can withstand further scrutiny to its constitutional and political standing.

ibid. ibid. 19 ibid. 20 ibid. 21 ibid. 22 ibid. 18

Ireland and the United Kingdom Further Conflicts and the UK McAllister was significant as it rejected the argument that the Withdrawal Agreement is in opposition to the Acts of Union 1800.23 Having examined a few of the concerns presented by forces opposed to Brexit, it is necessary to consider the legal defences that enabled Brexit. In order to justify Brexit, Northern Ireland’s autonomy was constrained further. Article 50 of the Lisbon Treaty was specified as strictly under the power of the UK government.24 Northern Ireland was quoted as only having influence over devolved legislatures, and to have no ‘parallel legislative competence’ with regard to their relationship with the EU.25 Further, the Northern Ireland Agreement asserts that the UK has final jurisdiction over all forms of legislation.26 The 1988 Act, which supports the Good Friday Agreement, can be overcome by the protocols of Brexit. However, the UK holds that the Good Friday Agreement only concerns whether Northern Ireland would remain within the UK or form a United Ireland, and not whether Northern Ireland would be positioned outside the EU. Brexit has moved forward irrespective of its uncertain legal status. It is no longer a question of whether Brexit is legally valid; rather, how can the law protect citizens and institutions in the wake of Brexit? Conclusion Numerous jurisdictions have attempted to produce a Brexit that mutually benefits the UK and the EU. Unfortunately, more work must be done to achieve that reality. Special attention must be paid to Northern Ireland, as they remain in a uniquely compromised position. Cooperative bilateralism remains achievable, but further advancements are necessary. Three crucial pieces of legislation could make or break the chance Northern Ireland has at improving its position. The most principal of these the Withdrawal Act.27 It is paramount that the Withdrawal Act be amended to include a more holistic

23Alan

Erwin, ‘NI Protocol Conflicts with Acts of Union, Court Told During Legal Challenge From Unionists,’ (Belfast Telegraph, November 29 2021). 24 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306, art 50. 25 Judicial Communications Office, ‘Court Dismisses Challenge to EU Exit Protocol’ (30 June 2021) <https://www.judiciaryni.uk/sites/judiciary/files/decisions/Summary%20of%20judgment%20%20In%20re%20Jim%20Allister%20and%20others%20%28EU%20Exit%29%20%20300621.pdf>. 26 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (n 1) s 5(6). 27 ibid.

Ireland and the United Kingdom understanding of provisions relative to Northern Ireland. It would also be advisable in the absence of a pre-existing legislation that codifies human rights, to institute a Bill of Rights for Northern Ireland that would establish protections for citizens. Further, the EU Charter of Fundamental Rights must be acknowledged, preserved, and enforced as Northern Ireland navigates post-Brexit politics. Finally, the Northern Ireland Act of 1988 must be similarly upheld, specifically section 75, which references equality and human rights.28

Northern Ireland Act 1988, s 75.

Ireland and the United Kingdom

DIRECT PROVISION: COMPARING ASYLUM PROVISIONS IN IRELAND AND THE UNITED KINGDOM FROM 1922 TO PRESENT Emily Peters

Ireland’s controversial policy of Direct Provision, often associated with its accommodation centres, encompasses a range of provisions for asylum seekers including health care and allowances. It was proposed shortly after the Immigration and Asylum Act 1999, the basis for the UK’s reception policy, was put forward. Direct Provision mirrors UK policy in many ways. However, both Ireland and the UK intend to move away from their current systems. Ireland has proposed to improve the system for asylum seekers. Conversely, the UK’s proposals have aimed to restrict immigration and criminalize the asylum process. This article will analyse the treatment of asylum seekers in both countries by examining historical attitudes, comparing their current systems and by comparing the future of asylum in the two states. Treatment of Asylum Seekers in the 20th Century The UK had a long history of immigration, and related legislation leading up to the current policy. This legislation was historically strict. In 1922, any immigrant who could not support themselves and their defendants could be refused entry into the UK. 1 The Refugee Convention 1951 enumerated the international rights of refugees and was a turning point for asylum policy in the UK.2 To align with the Convention, the UK formed organizations which would later merge to form the Refugee Council.3 However, the 1990s saw the development of what would eventually become the policy of segregating asylum seekers from the general public. The Refugee Council and government worked together to establish temporary reception centres and support for newly arrived asylum seekers as a response to various European crises. 4 These temporary measures would inform the provisions of the Immigration and Asylum Act of 1999, the basis of the current system.

Aliens Restriction (Amendment) Act 1919 (UK); Aliens Order 1920, SR&O 1920/448 (UK). Convention Relating to the Status of Refugees (1951) 189 UNTS 137. 3 These were the British Council for Aid to Refugees and the Standing Conference on Refugees; see ‘Our History’ (Refugee Council 2022) < www.refugeecouncil.org.uk/about-us/our-history/> accessed 1 Mar 2022. 4 Refugee Council ‘Our History’ (n 3). 2

Ireland and the United Kingdom In contrast, Irish legislation around immigration was sparse at the start of the century. It was not until the late 1990s that Ireland received a significant influx of asylum seekers.5 In response, Direct Provision was adopted as an emergency procedure. It took on many of the same qualities as the recently established UK system. The Current Systems Following the increased number of asylum applications, the UK adopted the Immigration and Asylum Act in 1999. This created a specific reception system to support asylum applicants as they awaited processing. 6 The policy which arose from this and has been further influenced by EU measures7 requires that those granted asylum are provided with information about the rights and services they are entitled to.8 Among these are the rights to receive medical treatment 9 and assistance finding legal representation.10 The most recognised service provided is housing. Applicants are first placed in temporary accommodation, typically hostels, for a month,11 longer if backlogs occur.12 They are not entitled to access welfare payments during this period. When their claim is filed, applicants are moved into standard accommodation, provided there is space. They are not given a choice as to where they will be moved. Often these centres are remote, far from the applicants’ legal representatives. 13 They have been criticized for

Martin Ruhs and Emma Quinn, ‘Ireland: From Rapid Immigration to Recession’ (Migration Policy, 1 Sept 2009) <www.migrationpolicy.org/article/ireland-rapid-immigration-recession> accessed 1 Mar 2022. 6 Immigration and Asylum Act 1999, pt 4 (UK). 7 Council Directive 2003/9/EC Reception Conditions Directive OJ L 31/18. 8 Immigration Rules (HC 395) pt 11, para 344C (UK). 9 National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2021, SI 2021/1123, pt 4 (UK); Scottish Government Healthcare Policy & Strategy Directorate, April 2010, CEL 9 (2010) Overseas Visitors’ Liability to Pay Charges for NHS Care and Other Services (UK); Provision of Health Services to Persons Not Ordinarily Resident Regulations (Northern Ireland) 2015, SI 2015/27 reg 9 (UK). 10 Immigration Rules (n 8) pt 11b, para 358 (UK). 11 National Audit Office, COMPASS contracts for the provision of accommodation for asylum seekers (HC 880) 2014 (UK). 12 AIDA Asylum Information Database, Country Report: United Kingdom (2015) 70; Immigration and Asylum Act 1999, s 98 (UK). 13 AIDA Country Report: UK (n 12) 84-7 (UK). 5

Ireland and the United Kingdom failing to ‘provide security, respect for privacy and basic levels of hygiene and safety, particularly for women’.14 Once in standard accommodation, applicants are entitled to a weekly payment, which is a mere £39.63 per person per week.15 This is the sole source of income for many applicants, as they are not permitted to work unless they have been awaiting processing for over a year.16 Ireland’s Direct Provision was modelled after the UK’s asylum system. Intended as a temporary emergency measure, it has lasted for 22 years. Like the UK, it is required that applicants are informed of their rights and the services they are entitled to. 17 These include children’s rights to enrol in the Irish school system 18 and all applicants’ rights to free health care. 19 Ireland faces unique problems in providing the critical service of accommodation. A housing crisis has led to a shortage of accommodation, but as the number of asylum seekers continues to grow, it has led to an increase in the use of emergency accommodation.20 People may stay in temporary centres for up to 16 months.21 According to AIDA, the emergency accommodation is ‘unsuitable for the needs of protection applicants’,22 especially in regard to personal space23 and the quality of food.24 Furthermore, applicants who have been in the system for over 6 months are permitted to work.25 However, practical matters such as the remoteness of the locations and lack

ibid 68; Home Affairs Committee, Asylum Accommodation: Replacing COMPASS (HC 1758) 2018 (UK). 15 Asylum Support (Amendment) Regulations 2021, SI 2021/99 (UK). 16 ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442 (UK). 17 Reception Conditions Regulations 2018, SI 230/2018, reg 3. 18 ibid reg 17. 19 ibid reg 18. 20 Dáil Deb 15 September 2020, Parliamentary Question No 582; Sorcha Pollak, ‘Hotels in the east being used as temporary direct provision centres’ The Irish Times (Dublin, 19 November 2018). 21 Ombudsman, The Ombudsman & Direct Provision: Update for 2019 (2019). 22 AIDA Asylum Information Database, Country Report: Ireland (2020) 84. 23 Dáil Deb 3 March 2021, Parliamentary Question Nos 602, 603, 612 and 613. 24 Ombudsman, The Ombudsman & Direct Provision: Update for 2020 (2021). 25 Department of Justice, ‘Minister McEntee announces reduced 6 month waiting period for international protection applicants to access work’ (2021)

Ireland and the United Kingdom of public transit make finding work extremely difficult.26 This is significant as asylum seekers are only entitled to a weekly allowance of €38.80 per adult and €29.80 per child.27 The intention was that people would spend no longer than 6 months in Direct Provision before integrating into the general community. However, the majority of applicants stay in Direct Provision for over a year, and some have been in the system for over seven years.28 Future Reform Both Ireland and the UK have recently planned changes to their asylum systems: while Ireland aims to improve the system for asylum seekers, meeting their needs where the current system fails to, the UK aims to restrict immigration to the state. The differing approaches are notable, as Ireland and the UK have previously held similar attitudes toward migration and asylum.29 However, the attitude of the UK has been significantly more negative than that of Europe as a whole in recent years. 30 Importantly, the change follows the UK’s departure from the EU. Therefore it is not bound to EU rightsprotecting measures which it adopted as a member state. The ‘Nationality and Borders Bill’, put forward by anti-immigration Home Secretary Priti Patel, was criticized as unconstitutional and sparked a number of protests. 31 The

<www.justice.ie/en/JELR/Pages/PR21000016> accessed 1 Jan 2022; NVH v Minister for Justice and Equality [2017] IESC 35; Reception Conditions Regulations 2018, reg 11(3). 26 Country Report: Ireland (n 22) 91. 27 Department of Social Protection, Daily Expenses Allowance (2019) <www.gov.ie/en/service/ba5ad9-daily-expenses-allowance/> accessed 1 Feb 2022. 28Dáil Deb 13 October 2020, Parliamentary Question No 372. 29 Anthony Heath and Lindsay Richards (2019), ‘How do Europeans differ in their attitudes to immigration?: Findings from the European Social Survey 2002/03 – 2016/17’, OECD Social, Employment and Migration Working Papers No 222, 1 <www.doi.org/10.1787/0adf9e55-en> accessed 1 Mar 2022, 12, 14. 30 Scott Blinder and Lindsay Richards, ‘UK Public Opinion toward Immigration: Overall Attitudes and Level of Concern’ (The Migration Observatory, 20 Jan 2020) <www.migrationobservatory.ox.ac.uk/resources/briefings/uk-public-opinion-towardimmigration-overall-attitudes-and-level-of-concern/> accessed 2 Mar 2022, fig 2. 31 Chantal Da Silva, ‘UK Accused Of Hosting 'Sham' Consultation On Refugee Policy In Letter Signed By Nearly 200 Groups’ Forbes (30 April 2021) <https://www.forbes.com/sites/chantaldasilva/2021/04/30/uk-accused-of-hosting-shamconsultation-on-refugee-policy-in-letter-signed-by-nearly-200-groups/?sh=5c2567b064c3> accessed 1 Feb 2022; Nalini Sivathasan, ‘Nationality and Borders Bill: Why is it causing

Ireland and the United Kingdom bill proposed to segregate refugees into two groups: lawful and unlawful. 32 To qualify as ‘lawful’, applicants must have come directly to the UK33 and presented themselves to the relevant authorities without delay.34 The majority of refugees stop first in a country which borders their first country and therefore would not meet these requirements.35 The grouping system would allow the UK to skirt around the rights which ‘lawful’ asylum seekers are entitled by international law. 36 The bill then sought to capitalize on this by criminalising the asylum process in a way which would impact 90% of asylum seekers in the UK.37 Additionally, it would allow a naturalized individual’s citizenship to be revoked without any notice, for the vague purpose of ‘public interest’.38 According to UN human rights experts, this would ‘increase the possibility of arbitrary deprivation of citizenship ̶ which has a troubled history rooted in racism and discrimination.’39 However, the clauses which categorized certain asylum seekers as unlawful and allowed for the revocation of citizenship without notice were both rejected in the House of Lords on 1 March 2022.40 The recent rejection of these central clauses has dramatically

protests?’ The BBC (London, 7 Jan 2022) <https://www.bbc.com/news/newsbeat-59651523> accessed 1 Feb 2022. 32 Nationality and Borders Bill HC Bill (2021-22) cl 11(1) (UK). 33 ibid cl 11(2)(a). 34 ibid cl 11(2)(b). 35 UNHCR, Refugee Data Finder (2022) <https://www.unhcr.org/refugee-statistics/> accessed 1 Feb 2022. 36 See also European Convention of Human Rights (ECHR), arts 3, 6, 7. 37 Those who do not obtain an appropriate entry clearance before arriving commit a criminal offence as per the Nationality and Borders Bill clause 9(2). There is no asylum category for entry clearances, therefore anyone coming from a country where a visa is necessary has the potential to be charged. This includes 90% of asylum seekers in the UK; see also UK Home Office, Immigration Statistics (September 2021) <https://www.gov.uk/government/statisticaldata-sets/asylum-and-resettlement-datasets#asylum-applications- decisions-and-resettlement> accessed 1 Mar 2022. 38 Nationality and Borders Bill (n 32) 9(2)(c)(iii). 39 OHCHR, United Kingdom Nationality and Borders Bill undermines rights of victims of trafficking and modern slavery, UN experts say (2022) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=28027&LangID=E> accessed 1 Mar 2022. 40 UK Parliament, Lords asks government to think again on Nationality and Borders Bill (2022) <www.parliament.uk/business/news/2021/december-2021/lords-debates-nationality-andborders-bill/> accessed 2 Mar 2022.

Ireland and the United Kingdom reduced the impact of the proposed bill and it is now unclear what the future of asylum will look like in the UK. In stark contrast to the UK’s proposal, Ireland’s new approach to asylum alleges to be ‘grounded in the principles of human rights.’41 The proposed system aims to reduce both the processing time for applications42 as well as the length of time applicants will stay in reception centres before integrating into the greater community.43 It addresses previous concerns around privacy44 and placement preferences.45 Finally, it bolsters existing services which asylum seekers have a right to under the 2018 Regulations by offering additional health services46 additional supports for vulnerable people,47 educational support48 and financial support which will be determined on an individual basis.49 The switch from Direct Provision to this new system is intended to be complete by 2024.50 This proposed system is not without critique. Firstly, it did not account for the Advisory Group on Direct Provision’s recommendation to offer those already in the system for 2 years permission to remain.51 The Irish Refugee Council deemed this necessary to reduce application backlogs.52 Additionally, while the White Paper outlining the new system sets the government's intentions for future legislation, it is not legally binding. This inhibits accountability for the government if it fails to meet its proposed goals. Nonetheless, it may be seen as a step in the right direction. Collins asserts that such a

Department of Children, Equality, Disability, Integration and Youth, White Paper to End Direct Provision and to Establish a New International Protection Support Service (2021) 11. 42 ibid 49. 43 ibid 42. 44 ibid. 45 ibid 43. 46 ibid 55. 47 ibid 60. 48 ibid 62-3. 49 ibid 64. 50 ibid 84. 51 Department of Justice, Report of the Advisory Group on the Provision of Support including Accommodation to Persons in the International Protection Process (2020) 1. 52 Helen Donohue, ‘Govt to replace Direct Provision with international protection system’ RTÉ (Dublin, 26 Feb 2021) <www.rte.ie/news/ireland/2021/0226/1199464-direct-provision/> accessed 1 Feb 2022.

Ireland and the United Kingdom step may be attributable to increasing public awareness about the issues faced by asylum seekers and, more generally, by minorities as a whole.53 The UK and Ireland are both facing upcoming changes to their asylum systems. While the two states have an overlapping history of asylum protocol, their proposed changes could not be more different. The UK’s proposed changes would make it harder for individuals to apply for asylum. Ireland, on the other hand, has aimed to better accommodate asylum seekers. Past surveys have shown Ireland and the UK to have similar sentiments around migration and asylum.54 However, these policy changes, in addition to events such as Brexit, suggest a widening difference between the attitudes of the two countries. As the Nationality and Borders Bill continues to develop in the UK parliament and the provisions of the White Paper on Direct Provision begin to be enacted, one will be able to see these changing attitudes take shape.

Niamh Collins, ‘Ireland’s Refugee Deterrence Policies’ (2021) CCJHR Working Paper Series No 12/2021, 1 <www.ucc.ie/en/media/academic/law/CCJHRWPSNo12NiamhCollinsRefugeeDeterrencePolici esMarch2021(002)-1.pdf> accessed 1 Mar 2022, 28. 54 Heath and Richards (n 29) 12, 14. 53

Ireland and the United Kingdom

ONLINE HATE SPEECH IN IRELAND AND THE UNITED KINGDOM Roisín McFadden

With the rise of the Internet and social media over recent decades, online hate speech and harmful content have become new and prevalent issues in law. Ireland’s legislation on the issue is the outdated Prohibition of Incitement to Hatred Act 1989, which is due to be replaced by The Criminal Justice (Hate Crime) Bill 2021, currently before An Seanad. This article will contrast the two Acts. It will also discuss how cases involving online hate speech are handled in other jurisdictions, in particular the UK, compared to Ireland, with regards to legislation, court attitude and sentencing. Prohibition of Incitement to Hatred Act 1989 The current position in Irish law regarding hate speech is covered in s2 of the Prohibition to Incitement of Hatred Act 1989, under ‘actions likely to stir up hatred’. The 1989 Act states that if written material, words, behaviour, images or sounds are likely to stir up hatred towards a protected group then it is an offence to publish, distribute, or perform this behaviour. This material is described as being ‘threatening, abusive or insulting’. This applies if the material is displayed in a context where people outside their private residence are likely to see it.1 In this case hatred is defined as ‘hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.’ The Act makes no reference to online hate speech specifically. Irish Case Law There is only one significant case of someone being tried under the Prohibition of Incitement to Hatred Act in this jurisdiction, where Patrick Kissane 2 became the first person to be tried for hate speech under the 1989 Act. In the Killarney District Court in 2011 Kissane was tried for setting up a Facebook Group named ‘Promote the Use of

Incitement of Hatred Act 1989. John O'Mahony, 'Facebook Traveller Rant Was A 'Once-Off' (Independent, 2011) <https://www.independent.ie/irish-news/courts/facebook-traveller-rant-was-a-once-off26777448.html>. 2

Ireland and the United Kingdom Knacker Babies as Bait’3, as a result of a bad interaction with a traveller in a local pub. The page in question had extremely low privacy settings, meaning that the content posted was visible to anyone with a Facebook account and the group garnered over 600 members before its eventual deletion. Kissane was acquitted of all offences. The court found his attitude towards travellers to be ‘obnoxious, revolting and disgusting’4 but decided that it did not qualify as hate speech due to lack of intent and no proof of real hatred being incited was put forward. The 1989 Act states that for an offence to be committed, stirring up hatred must be intended or likely5, implying that intention is not an essential factor. As well as this, the defence that no real hatred had been incited as a result of the page seems difficult to understand, as the objective likelihood of a page being named such as it was provoking hatred is extremely likely. The District Court were willing to let this go as a ‘once off incident’6. UK Case Law In comparison to Irish case law, cases of online hate speech in the UK have been more harshly prosecuted. In R v Davison7, a man was prosecuted for posting racist remarks about Muslims from his personal Instagram account. These remarks were accompanied by a photograph of himself holding a gun. The defence argued that the post had not caused anyone to ‘take action and be spurred on’8 by it, similar to the lack of incited hatred defence in Kissane, however the Welsh courts rejected this and sentenced Davison to four years imprisonment on the grounds of hate speech. In Scotland, the sentencing is also harsher for offences of this nature. A Facebook page entitled ‘Neil Lennon Should Be Banned’, which was critical of the manager of the Celtic football club, included sectarian comments about Catholics posted by a Mr Birrell9 in the same year as the Kissane case. In the Glasgow Sheriff court, Mr Birrell was given an eight month prison sentence for comments in the group that included ‘Proud to hate Fenian tattie farmers’ and ‘Hope they (Celtic fans) all die. Simple. 3

ibid. ibid. 5 ibid. 6 Prohibition to Incitement of Hatred Act, 1989 s2. 7 [2020] EWCA Crim 665. 8 ibid. 9 'Internet Bigot Stephen Birrell Facing Prison Term' (BBC News, 2011) <https://www.bbc.com/news/uk-scotland-glasgow-west-15077806> Accessed 13 March 2022. 4

Ireland and the United Kingdom Catholic scumbags ha ha.’10. The Sheriff concluded that ‘very real harm does result’ from comments such as Birrell’s, unlike the judgement in the Killarney District Court. Scotland also recently passed new hate speech legislation, in the form of the Hate Crime and Public Order (Scotland) Act 202111, which is expected to come into force this year. The Act takes laws on hate speech a step further, criminalising speech which is considered inflammatory and offensive, even if it is proven no actual harm has been incited from the words. The Act has received criticism, mainly from the public, based on the effects it could have on free speech on the Internet12 and remains a divided issue. The Criminal Justice (Hate Crime) Bill 2021 The Criminal Justice (Hate Crime) Bill is currently before An Seanad and aims to update the Prohibition of Incitement to Hatred Act 1989. The changes to legislation are not overly significant aside from sentencing changes, with the revised laws being: Head 3 of the General Scheme provides that a person who communicates with the purpose of inciting hate or being reckless to whether said communication will incite hatred against people with a protected characteristic will be guilty of an offence. If found guilty of this offence on a summary conviction, the person will be liable to a Class A fine and/or imprisonment for a term of up to 12 months 13, which is an increase from 6 months in the 1989 Act. On conviction of indictment, they will be liable to an unlimited fine and/or imprisonment of up to 5 years14, increased from 2 years imprisonment under the 1989 Act. This is a large, proposed increase in sentencing for hate crimes and is more in line with the current UK punishment. The new Bill also acknowledges online hate speech specifically, placing liability on the social networking platforms themselves. The platforms do have a defence where they can prove that they were unaware of hate crime measures and followed adequate procedure to try to attempt to stop it. 15This is in line with the European Commission’s

ibid. Hate Crime and Public Order (Scotland) Act 2021. 12 'Scotland’s New Hate Crime Act Will Have A Chilling Effect On Free Speech' (The Economist, 2021) <https://www.economist.com/the-world-ahead/2021/11/08/scotlands-new-hate-crime-actwill-have-a-chilling-effect-on-free-speech> Accessed 13 March 2022. 13 The Criminal Justice (Hate Crime) Bill, 2021. 14 ibid. 15 ibid. 11

Ireland and the United Kingdom ‘Code of conduct on Countering Illegal Hate Speech Online’, which requires intermediaries to aim to remove harmful content within 24 hours.16 Criticism of The Criminal Justice (Hate Crime) Bill 2021 The proposed Criminal Justice (Hate Crime) Bill 2021 has also received its fair share of criticism. The Irish Human Rights and Equality Commission (IHREC) has described it as vague and open-ended, and lacking legal certainty. 17 The IHREC has advised that the definition of hatred be widened to include matters such as ‘disinformation…harmful conduct, including grooming and radicalisation’18 as they become more prevalent across the Internet. The Law Society of Ireland’s report on the 1989 Act recommended that any reform should also include punishment for sharing and ‘retweeting” of hateful material19’. This has not been incorporated into the 2021 Bill. The Irish Council for Civil Liberties have also expressed concern that the hate speech and hate crime aspects of the proposed Bill ‘are being treated together under the same legislation while being distinct’ 20. It is important that these issues are discussed separately despite their link. Conclusion Ireland currently has a much more relaxed legal attitude to hate speech, particularly online hate speech, compared to jurisdictions in the UK. The introduction of the European Commission ‘The EU Code Of Conduct On Countering Illegal Hate Speech Online' (2016) <https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combattingdiscrimination/racism-and-xenophobia/eu-code-conduct-countering-illegal-hate-speechonline_en> as cited in Michael O'Doherty, Internet Law (Bloomsbury 2020). 17 Irish Human Rights and Equality Commission, 'Submission To The Joint Committee On Media, Tourism, Arts, Culture, Sport And The Gaeltacht On The General Scheme Of The Online Safety And Media Regulation Bill' (2021) <https://www.ihrec.ie/app/uploads/2021/03/IHRECSubmission-to-the-Joint-Committee-on-Media-Tourism-Arts-Culture-Sport-and-the-Gaeltachton-the-General-Scheme-of-the-Online-Safety-and-Media-Regulation-Bill-FINAL.pdf> Accessed 11 March 2022. 18 Irish Human Rights and Equality Commission (n 17). 19 Law Society of Ireland, 'Submission On The Review Of The Prohibition Of Incitement Of Hatred Act 1989' (2020) <https://www.lawsociety.ie/globalassets/documents/submissions/submission-prohibitionincitement-to-hatred-act-1989.pdf>. 20 Irish Council for Civil Liberties, 'Ahead Of Oireachtas Discussion On Hate Crime, On UN Day For Tolerance, Affected Communities Call For Action' (2021) <https://www.iccl.ie/news/aheadof-oireachtas-discussion-on-hate-crime-on-un-day-for-tolerance-affected-communities-call-foraction/> 16

Ireland and the United Kingdom Criminal Justice (Hate Crime) Bill is a step in the right direction. It will likely be easier for victims of hate speech to seek justice, given the harsher sentences and specific acknowledgement of hate speech online, without interfering with freedom of speech in a radical way. The Criminal Justice (Hate Crime) Bill 2021 could be further amended to include more reference to hate speech online, given that the Internet is ‘ideally positioned for the dissemination of hate speech’.21 It should also expand its definition of ‘hatred’ to include newer harmful practices, such as those named by the Irish Human Rights and Equality Commission above.

O'Doherty (n 16).

Ireland and the United Kingdom

PRIVACY CONCERNS: THE NEW STRAIN OF VIRUS DURING THIS FRAUDSTER ‘SCAMDEMIC’ Frances Aketch

Technology: The Passive Enabler of Fraud During Pandemics With a significant growth of Internet usage individuals’ trust is at an all-time high. Throughout the COVID-19 pandemic, one noticed people increasingly sharing their personal information online to stay connected during those trying times. 1 As a result, an enormous amount of personal information on financial transactions have been exposed by vulnerable individuals to cyber criminals. 2 With consumers at increased risk of data fraud, this article examines the means in which cybercriminals access and compromise personal information and how the world ought to evolve to tackle this new reality. When it comes to data fraud, a real and challenging question is raised over who is truly in the wrong? Should we lay blame at naïve, trusting consumers who fail to take adequate protective measures to secure their personal data? Or rather, should we attribute fault to the banks, who fail to ensure their consumers are adequately protected from data threats? Should the banks owe vulnerable consumers a duty of care in carrying out their functions? Phishing or push fraud which will be outlined below has been a growing legislative concern, with recent Acts passed (at least in part) to consider this rising threat (including the Data Protection Act 2018, Companies Act 2014 and Finance Act 2019). Developments in recent day to day life allude to the many profitable forms of cybercrime. This has led to a recent influx of such activities, due to the ease and convenience for criminals to steal important user data.3 The data here indicates a 40% Niam Yaraghi and Samantha Lai, ‘How the Pandemic Has Exacerbated Online Privacy Threats’ (Techtank, 13 January 2022) <https://www.brookings.edu/blog/techtank/2022/01/13/how-thepandemic-has-exacerbated-online-privacy-threats/> accessed 26 March 2022. 2 Dan Patterson, ‘Cybercrime is Thriving During the Pandemic, Driven by Surge in Phishing and Ransomware’ (CBS Moneywatch, 19 May 2021) <https://www.cbsnews.com/news/ransomwarephishing-cybercrime-pandemic/> accessed 26 March 2022. 3 Central Statistics Office, Recorded Crime Q2 2021 (Media Release 29 September 2021) <https://www.cso.ie/en/releasesandpublications/ep/p-rc/recordedcrimeq22021/> accessed 26 March 2022. 1

Ireland and the United Kingdom rise in fraud, deception and related offences compared with the previous year. 4 These once white-collar criminals have evolved over the pandemic from a once harmless saprophyte to a new strain of parasitic bacteria preying on all members of our society. The coronavirus pandemic necessitated social distancing measures, requiring people to remain in their homes, leading to intense reliance on digital technologies. 5 This has created many new and extensive environments and opportunities for individuals to commit online fraud and to be victimised on a widespread scale. Cybersecurity problems have also arisen due to home-based workers not adhering adequately to business cybersecurity policies, such as user authentication protocols, as well as improper sharing of sensitive corporate data with unauthorised family members. 6 The range of adaptations of conventional scams in the pandemic environment has been extensive, with criminals developing scams involving PPE and fake cures, domestic pet scams, employment scams, investment frauds, travel refund and insurance scams, and a variety of phishing attacks.7 Other frauds have involved identity crimes and ransomware threats involving COVID-19 scenarios, sometimes impersonating contact tracing officials to obtain personal and banking information. 8 There have also been reports of false charity scams and phishing emails claiming to provide important information regarding the latest coronavirus updates, local testing stations, potential cures, cheap medical products or working from home.9

ibid. Jo Adetunji, ‘The COVID-19 Pandemic Has Made Us Reliance on Digital Technologies, Eroding Our Privacy’ (The Conversation, 13 October 2021) <https://theconversation.com/thecovid-19-pandemic-has-made-us-reliant-on-digital-technologies-eroding-our-privacy-168792/> accessed 26 March 2022. 6 Ciannan Brennan, ‘Remote Working Causes New Data Protection Headaches’ (The Irish Examiner, 24 February 2022) <https://www.irishexaminer.com/news/arid-40815051.html/> accessed 26 March 2022. 7 David Robson ‘ How Fraudsters Exploited Our Fears During the Scamdemic’ (BBC Future, 14 June 2021) <https://www.bbc.com/future/article/20210611-how-fraudsters-exploited-our-fearsduring-the-pandemic/> accessed 26 March 2022. 8 William Cooper, ‘How COVID-19 Created a New Wave of Fraud & False Insurance Claims’ (William Russell, 4 March 2022) <https://www.william-russell.com/blog/insurance-fraud-covidcreates-new-claims/> accessed 26 March 2022. 9 Leigh McGowan, ‘With the Rise of Ransomware, Report Says Cybercrime Cost Ireland €9.6bn in 2020’ (Silicon Republic, 23 November 2021) <https://www.siliconrepublic.com/enterprise/cybercrime-ireland-costs-ransomware-phising/> accessed 26 March 2022. 5

Ireland and the United Kingdom What is Push Fraud? (APP Scams) Push payments involve a bank transferring money from a customer’s accounts to a secondary account. This is further described as ‘authorised’ when a customer gives their consent for a process to occur.10 Everyday examples of this are ordinary tasks such as entering passwords or completing buying transfers. However, scams of this nature have had exponential growth during the pandemic.11 Further, it is worthwhile defining for context of this piece the other principal source of fraud namely what is called “Phishing”. Phishing is where one is persuaded to give away valuable information about one’s self or financial data which may enable a fraudster to extract money from one’s bank account or make payments using ones credit card.12 Or alternatively to enable fraudsters to assemble the information which may then be used to help them in a push fraudulent transactions. Historically, traditional ‘over the phone’ methods of calls or letters to customers was a key way to defraud customer. However, as outlined emails and texts have become the more prominent medium in recent times. The frequent and long-lasting lockdowns over the course of 2020 and 2021 have further increased consumer’s reliance on technology, and thus risk of a data breach. Overall, this has meant it has been increasingly difficult for ordinary bank users to identify what is a scam as their guises constantly evolve. Important factors have had a contributory role in the increase of this type of fraud such as employees working from home, difficult opening hours, long waiting phone times, closed branches as a result of financial loss from the pandemic. Scamsters are well aware of these factors and sought to cash in on vulnerable consumers. These factors combined, leaves little surprise as to why someone you know received these scam texts or emails during this timeframe. And, unfortunately for a lot of trusting people, they

Sarah Rutherford, ‘What is Authorised Push Payment Fraud’ (FICO, 18 January 2022) <https://www.fico.com/blogs/what-authorised-push-payment-fraud/> accessed 26 March 2022. 11 Rodger Desai, ‘Fighting Authorised Push Payment Fraud in the UK’ (Prove, 27 August 2021) <https://www.prove.com/blog/fighting-authorized-push-payment-fraud-in-the-uk/> accessed 26 March 2022. 12 Josh Fruhlinger, ‘What is Phishing? How This Cyber Attack Works and How to Prevent It’ (CSO, 4 September 2020) <https://www.csoonline.com/article/2117843/what-is-phishing-howthis-cyber-attack-works-and-how-to-prevent-it.html/> accessed 27 March 2022. 10

Ireland and the United Kingdom were taken advantage of. The sophistication of these scams is that many victims do not harbour any suspicion until it’s often too late. Banking Scams: Protection or Deflection in Court? As noted in Philipp v Barclays Bank,13 the duty of care owed by banks requires them to refrain from acting on a payment instruction that would result in grounds which would be classed as misappropriation of funds. This duty of care likely arose from principles established in Quinncare14. This case concerned a bank’s duties arising in the case of a customer instructing their bank to make payments to an unknown push payment fraud scam. However, as noted in this case, it is neither fair nor reasonable to impose liability on the part of the bank in response to fraud perpetration. 15 Regardless of the circumstances, UK courts have established that such a liability would simply only rest on grounds of unprincipled and impermissible extensions of duty of care. Ireland does not tend to depart from English courts judgements in banking law cases, 16 although the Irish courts have not yet had many opportunities to explore this precise question yet. Additionally, the courts do not tend to have much sympathy as such for those customers who fall victim to these fraudulent scams, not because of a lack of compassion but the implications any successful APP fraud scam would have on future cases.17 The entire issue surrounding these scams derives from questions surrounding duties of care to inspect every single transaction of payment instruction under every circumstances. Banks with outsourcing capabilities do not possess the funds or staff power especially during the pandemic which resulted to a shift in the market and the closure of Ulster Bank Irish branches or KBC. If the law required bankers to complete such an onerous discharge before every transaction it would simply not be commercially feasible to protect this duty of care. Further challenges surrounding these types of transactional offences pertain to the culprit being often difficult to identify with the immediate transfer of data and funds to

Philipp v Barclays Bank [2021] EWHC 10. Barclays Bank Plc v Quinncare Ltd [1992] 4 All E.R. 363 [35]. 15 ibid. 16 John Breslin and Elizabeth Corcoran, Banking Law (4th edn, Round Hall 2018), 12. 17 William Towell, ‘Authorised Push Payment Frauds – Plenty of Sympathy But Few Easy Answers’ (Hausfeld, 26 January 2021) <https://www.hausfeld.com/en-gb/what-wethink/perspectives-blogs/authorised-push-payment-frauds-plenty-of-sympathy-but-few-easyanswers/> accessed 27 March 2022. 14

Ireland and the United Kingdom various accounts.18 A further challenge surrounding this scamdemic’s rise to popularity the reluctance of a company or banking institutions to admit to being attacked owing to the negative public image this would create. In the UK, there exists jurisprudence from ZAM v CFM and TFW19 for the anonymization of blackmail plaintiff cases. While in Ireland there is merely a common law power to anonymize as shown by decisions from Kelly J in Medical Council v Anonymous20. This has led to the demand of a strengthening call-in legislation to ensure banks and consumers akin act bona fide if they know their reputation is protected against these cybercrimes. 21 Conclusion It will be interesting to note which other jurisdictions follow the UK’s lead in the fight against phishing and push fraud scams. As banking practices continue to evolve symbiotically with technology it’s truly imperative to strip duties back to their simplistic truths. Upholding legal obligations for banks and customers akin. It would be “commercially unrealistic” for a bank to require its staff to question every authorised payment instruction, regardless of the amount, and impractical to set a threshold level at which such questioning may become necessary. However, hope remains in regard to reimbursement for those customers or banks who have been victims of considerable losses due to ubiquitous scams.

Aja McClanahan, ‘How to Identify a Scammer’ (Experian, 25 March 2022) <https://www.experian.com/blogs/ask-experian/how-to-identify-scammer/> accessed 27 March 2022. 19 ZAM v CFM and TFW [2013] EW 662 (QB) 20 Medical Council v Anonymous [2019] IEHC 109 21 Stephen O’Connor, ‘The Perils of Hacking: First Criminal Charge Under New Cyber Crime Legislation’ (Thought Leadership, 8 March 2022) <https://thoughtleadership.leman.ie/post/102gr07/the-perils-of-hacking-first-criminal-chargeunder-new-cyber-crime-legislation/> accessed 27 March 2022. 18

Ireland and the United Kingdom

THE UNITED KINGDOM AND IRELAND: NERVOUS SHOCK AND PUBLIC POLICY Ayah Abubakar

The United Kingdom has exercised a far more restrictive approach than Ireland towards the recovery of damages for nervous shock claims. Both jurisdictions have noted various public policy considerations in applying their respective approaches. The English courts have considered matters such as the ‘self-determination’ and ‘personal liberty’ of the tortfeasor, whereas the Irish courts have disapproved of such policies in favour of an approach which ensures a fair outcome for all parties involved. The most obvious distinction between the approaches taken by both courts is the categorization of primary and secondary victims. The English courts first categorised victims in White v Chief Constable of Yorkshire,1 defining a primary victim as one who is directly involved in an accident, exposed to physical injury, or is at risk of physical injury, and a secondary victim as a bystander to the accident. 2 Secondary victims, in addition to proving close proximity to the defendant and reasonable foreseeability of the injury, must prove spatial and temporal proximity to the accident. 3 By contrast, the Irish test to recover for psychiatric injury was set out in Kelly v Hennessy4 and does not adopt the categorization of victims. Instead, a plaintiff must establish that he or she actually suffered a recognisable psychiatric illness; that such illness was shock-induced; that the nervous shock was caused by the defendant's act or omission; that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff and that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general. 5 The Irish courts have extended recovery to where the shock to the plaintiff arose from witnessing the defendant’s self-inflicted injury, expressing that to do otherwise would

[1998] UKHL J1203-4, [1999] 2 AC 455. Curran v Cadbury Ireland Ltd 2000 WJSC-CC 7070, [2000] 2 ILRM 343, 359-360 (McMahon J). 3 ibid. 4 [1995] IESC 8, [1995] 3 IR 253. 5 ibid [5] (Hamilton CJ). 2

Ireland and the United Kingdom be contrary to citizens’ rights under the Irish Constitution.6 The English courts focused on limiting the degree to which one’s duty of care could extend. 7 By contrast the Irish approach exercised greater leniency to encompass a wider scope for arising duties of care.8 The English approach in cases where the defendant is the primary victim shows room for potential unfairness in particular scenarios, whereas the Irish approach, it is submitted, leaves the courts potentially exposed to floodgates of cases. The English approach to recovery for psychiatric injury by the plaintiff in cases where the immediate victim is the defendant initially appeared in Alcock v Chief Constable of South Yorkshire Police.9 In this case, Lord Keith established that there was no recent authority which allowed for liability arising on an injured defendant’s behalf where their injury was self-inflicted. This applies even where the psychiatric injury sustained is reasonably foreseeable.10 The court was of the view that a limit ‘to [a] some reasonable point’ was necessary to narrow the scope of the duty owed to third parties. 11 It was viewed as essential in curtailing the extent to which a negligent act could stem liability. Additionally, allowing for the recovery of damages in cases where nervous shock is induced by the self-inflicted injury of the tortfeasor imposes a requirement that goes against public interest. It gives rise to an obligation not to cause self-harm carelessly or intentionally, such to avoid breaching a duty of care not to cause psychiatric injury to some third party.12 Moreover, there exists the right to ‘self-determination’13, which is arguably impinged if such an obligation were to exist. This argument was explored by Cazalet J in Greatorex v Greatorex14 where it was decided that the right to selfdetermination and the impingement on personal liberty outweighed the arguments in favour of a duty arising from a defendant whose injury is self-inflicted.15 By contrast, Ireland’s approach to recovery in cases where the immediate victim is the defendant takes a broader stance. In Sheehan v Bus Eireann16 Keane J described the rule 6

Sheehan v Bus Eireann [2020] IEHC 160, [2020] 4 JIC 0304 [76-77] (Keane J). [1991] UKHL 5, [1992] 1 AC 310 [24] (Lord Keith). 8 Sheehan v Bus Eireann (n 6). 9 [1991] UKHL 5, [1992] 1 AC 310. 10 ibid [24] (Lord Keith). 11 ibid. 12 Law Commission, Consultation Paper on Liability for Psychiatric Illness (Law Com No 137, 1995), 36. 13 Greatorex v Greatorex [2000] 1 WLR 1970 (HC) 73 (Cazalet J) 14 ibid. 15 ibid [88] (Cazalet J). 16 Sheehan v Bus Eireann (n 6). 7

Ireland and the United Kingdom in Greatorex as an ‘inflexible, one-sided rule’ which was inconsistent with the ‘constitutional structures’ which ‘necessarily and properly’ direct the court’s decisions and operation.17 The learned judge then introduced two competing public policy considerations; namely the right to self-determination and the expectation that persons who situate themselves in dangerous scenarios should reasonably foresee the potential physical or psychiatric harm that the consequences of their actions could cause to others.18 Opposing the decision in Alcock, he rejected the argument that it would be unjust to impose liability where the defendant is the victim of a self-inflicted imperilment. This policy consideration bore the potential of generating ‘unfairness and injustice’ which Keane J considered ‘incompatible’ with the fundamentals of the Irish legal system. 19 The decisions in Greatorex and Sheehan have both merits and faults. The rule in Greatorex may pose an issue where the injury caused to the primary victim, the defendant, is not self-inflicted, but caused by a third party. If, according to Greatorex, one does not owe a duty of care to others not to inflict injury on oneself, then it could be concluded that in cases where a third party inflicts an injury on the defendant primary victim, then that primary victim may be held in joint liability with the third party. 20 This conclusion is contrary to ‘self-determination’ and ‘personal liberty’. Thus in such a case where the primary victim bears a ‘causal contribution’ to the injury, the primary victim may retain immunity against a claim from the plaintiff for two reasons; firstly, the victim’s right to self-determination and personal liberty, and secondly, the victim’s relation to the plaintiff.21 This approach embodies the approach of the civil German courts and is contrary to the common law’s general rules as regards joint tortfeasors. 22 It also produces an undesirable result where the primary victim is the main causal contributor to an accident, but the third party, being the one who has caused injury to the primary victim, cannot claim joint liability against the primary victim. 23 This is an unjust approach, particularly in cases where full liability is imposed on a third party

ibid. ibid [75]. 19 ibid [69]. 20 Basil Markesinis, ‘Foreign Law Inspiring National Law. Lessons From Greatorex v Greatorex’ (2002) 61(2) Cambridge Law Journal 386, 393. 21 ibid. 22 ibid. 23 ibid, 394. 18

Ireland and the United Kingdom who’s contribution to an accident, although evident, may not have been as great in fault as that of the primary victim’s.24 While the Irish approach in this regard may be commended for its relaxed nature, the approach in Greatorex is more desirable as it limits the extent to which one owes a duty of care. The Irish rationale appears to expect the tortfeasor to realise that placing themselves in a dangerous situation could impose on them a duty of care. It is submitted that widening the scope of liability to this extent places the Irish courts at risk of floodgates and a wider series of claims which may have to be dealt with on a case-bycase basis. Moreover, the English approach may be better applied if relaxed to a court discretion not to impose a duty on the defendant's primary victim, where it appears unjust or unreasonable to do so, rather than an outright ban on imposing such duty. 25 The Irish and English courts have also taken different approaches towards nervous shock claims within the family. In Greatorex, Cazalet J contended that litigation within the family would give rise to a generally undesirable situation,26 which could produce ‘acute family strife’.27 This approach suggests that where the defendant primary victim is related to the plaintiff, the plaintiff cannot recover anything at all even where the defendant is the sole tortfeasor for the accident, thus granting the defendant ‘family immunity.’ 28 In cases where a third party causes injury to the defendant primary victim, the family immunity approach acts contrary to the common law approach which holds joint tortfeasors liable for the whole extent of the harm caused to the plaintiff.29 ‘Family immunity’ in such cases places the entire liability on the third party, even where the primary victim is a joint tortfeasor, giving rise to unfair outcomes where the third party has to carry the entire loss. 30 Keane J in Sheehan discarded the litigation within the family argument because the policy did not ‘arise as a matter of law’ in Ireland, and litigation within the family was not contrary to public policy. 31 This approach is more consistent with the common law rules applied to joint tortfeasors and avoids any potential unfairness which may arise from cases involving third parties.

ibid. Brenda Barrett, ‘Policy Issues Concerning Compensation for Psychiatric Injury’ (2001) 30 Industrial Law Journal 110, 112. 26 Greatorex v Greatorex (n 13). 27 Barrett (n 25) 111. 28 Markesinis (n 20). 29 ibid. 30 ibid. 31 Sheehan v Bus Eireann (n 6). 25

Ireland and the United Kingdom Overall, the English courts with respect to nervous shock claims have exercised a strict approach which allows policies such as ‘self-determination’, ‘personal liberty’, and ‘family immunity’ to flourish at the expense of fairness for defendant third parties and claimants. The Irish courts have exhibited a flexible leniency which considers the importance of ensuring a just outcome for all parties involved.

IRELAND, THE EUROPEAN UNION AND THE WORLD

Ireland, the European Union and the World

THE EVOLUTION OF THE RIGHT TO RELIGIOUS FREEDOM OF EXPRESSION: FROM POST-INDEPENDENT IRELAND TO 2022 Saira Khan

The fundamental right to freedom of expression, particularly relating to religious practice, is well-established in both Irish domestic law and international law. The current tense political climate and the increase of secular states have led to a rise in antireligious rhetoric which has brought freedom of religion into question. 1 Freedom of Religion Post-Independence The implications of prohibiting religious freedom of expression on the social, economic, and political rights of a population are as profound today as they were at the creation of the Irish Free State. The dominant minority population in the Republic of Ireland in the 1920s were Protestants. They were the subject of home, business, church, and land attacks after the Irish Civil War.2 In the interval between the removal of British power in 1922 and the creation of law enforcement in the Free State, it was incredibly difficult for minority populations to exercise their religious beliefs. The post-Independence Gaelic, Catholic, and nationalist ethos of the new State had practical consequences for younger minorities who were required to learn Irish to enter the civil service, defence, and legal professions. Bowen, a renowned author and historian of Irish Victorian Protestantism, argued that this ‘forced cultural conformity’ was what contributed to Protestant emigration and essentially restricted their freedom of expression.3 The actions of the government were limited in diminishing the fear of the religious minorities. While Constitutional provisions protected religious freedom as a whole, there was no explicit provision protecting the rights of such minorities. 4 Hence, the government could openly deny that these protections included religious minorities, 1

Special Rapporteur on the Freedom of Religion or Belief, Report On Countering Islamophobia/Anti-Muslim Hatred To Eliminate Discrimination And Intolerance Based On Religion Or Belief (UN Human Rights Office of the High Commissioner 2021). 2 Terence AM Dooley, 'The Decline Of The Big House In Ireland, 1879-1950' (1998) 25 Irish Economic and Social History. 3 Desmond Bowen, History And The Shaping Of Irish Protestantism (P Lang 1995) 395. 4 Thomas Mohr, 'Religious Minorities Under The Constitution Of The Irish Free State, 1922– 1937' (2021) 61 American Journal of Legal History.

Ireland, the European Union and the World removing their freedom of expression.5 Regarding political representation, the 1922 Constitution provided for a proportional representation voting system for Dáil Éireann elections allowing religious minorities the chance to elect TD’s who would represent their interests.6 The Seanad had an unexpressed founding principle of giving Southern Protestants a voice in the politics of the State. Hence, De Valera’s attempt to abolish the Seanad in 1934 reflects the struggle for religious freedom of expression in the Irish Republic.7 Current Constitutional Protections of Religious Freedom Bunreacht na hÉireann, the 1937 Constitution, protects the fundamental right to freedom of expression by guaranteeing the right for citizens to express their opinions freely, subject to public order and morality.8 Article 44° also allows the practice of religion and freedom of conscience, and states that the State will not discriminate on religious grounds.9 Legislation such as the Regulation of Termination of Pregnancy Act 2018 and the Civil Partnership Act 201010 has allowed for Irish citizens to express freedom of conscience. This is a paramount right as it prevents an individual’s religious beliefs from being compromised while also allowing the non-believer to avail themselves of their rights. This is illustrated by allowing medical practitioners to not participate in the termination of a pregnancy if they have a conscientious objection. However, it also accommodates for the termination and the rights of the pregnant women by transferring care to someone who does not possess such an objection.11 The Impact of Religious Institutions and Beliefs in Modern Ireland The Catholic Church in Ireland had significant influence over education, resulting in religious discrimination regarding children’s acceptance to schools where the religious ethos of the patrons was to be respected. The Education (Admission to Schools) Act 201812 was introduced to further protect the religious freedom of expression of Irish citizens and prohibited schools from using religion as an admission criterion. Campaign

ibid. 1922 Constitution of the Irish Free State, Art 26. 7 Dáil Debate, 19 April 1934, vol 51, cols 2111-2. 8 Article 40.6.1.° 9 Article 40°. 10 Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. 11 Health (The Regulation of Termination of Pregnancy) Act 2018, s 22 (3). 12 Education (Admission to Schools) Act 2018. 6

100

Ireland, the European Union and the World to Separate Church and State13 signified the influence the Catholic Church had over schools at the time. Barrington and Keane JJ concluded that public funding of denominational schools, which is lawful under the Constitution,14 did not constitute an endowment of religion.15 However, freedom of religion was still provided for to a degree,16 as a child would be entitled to attend the school, regardless of their religious beliefs, and have the right not to attend ‘any course of religious instruction at the school’.17 This was echoed in McGrath and Ó Ruairc.18 Maynooth University, the defendant, held a religious ethos19 which bound employees through college statutes. It was deemed more important to allow the university to uphold its Catholic ethos than to protect the employees from religious discrimination.20. The Quinn’s Supermarkets case illustrates the Oireachtas’ intention to establish an equilibrium between the religious discrimination of one faith and allowing for the freedom of expression of another.21 While the Hours of Trading Act 1938 prevented meat from being sold in the evening, an exception was made for kosher butchers to accommodate their Sabbath from Friday sundown to Saturday sundown. It was argued that this exception was unconstitutional to those of non-Jewish faith who were unable to sell their meat. On the other hand, as this judgment made clear, the freedom to practice religion became more constitutionally protected than the freedom from religious discrimination.22 However, a failure to protect the right to religious expression has also been seen in situations of employment. A Sikh was prohibited from wearing his turban, a form of religious expression protected under Article 44,23 as part of the Garda uniform to join the reserve. After arguing the case before the Equality Tribunal, the High Court ruled that it was not religious discrimination as the Garda Reservists are legally considered 13

Campaign to Separate Church and State Ltd v Minister for Education [1998] 3 IR 321. Article 42.2.4°. 15 Campaign to Separate Church and State Ltd (n 13). 16 Gerry Whyte, Paper On Religion And Education (The Irish Human Rights and Equality Commission 2010). 17 ibid 356, 100. 18 McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166. 19 Article 44.2.5°. 20 McGrath (n 18). 21 Quinn’s Supermarkets v Attorney General [1972] IR 1. 22 Quinn’s Supermarkets (n 21). 23 ibid. 14

101

Ireland, the European Union and the World volunteers and not employees. It can be argued that such a restriction on religious expression can lead to minority communities not feeling welcome into the workforce.24 EU Law Safeguards of Freedom of Religious Expression Ireland’s membership to the European Union (EU) has protected Irish citizens’ rights to freedom of religious expression under European law.25 The right to freedom of religion protects individuals and not religions themselves.26 Articles 10 and 9 of the European Convention on Human Rights (ECHR) protect the right to freedom of thought, conscience, and religion.27 These provisions include the right to manifest religion in worship, teaching, and practice. The right to conscientious objection28 and the manifestation of such beliefs are only limited by law for public safety and the freedom of others.29 Case law illustrates that EU legislators aim to balance freedom of religion with other rights and interests of citizens. The Kocabas30 case proves this as a school requirement for the plaintiffs’ children to attend mixed swimming lessons, although contrary to the religious beliefs of the plaintiff, did not violate Article 9. 31 This was because flexible arrangements such as wearing a burkini were offered and the children’s obligations to follow the school curriculum and integrate within the social elements of education were deemed more important than their religious choices.32 The EU safeguards against religious discrimination may be strong, but the rise of secular rhetoric has resulted in controversial judgments. In Eweida, a female British Airways employee who wore a small cross necklace was demoted to a non-customer role as the

Conor Gallagher, 'Headscarves And Turbans To Be Allowed As Part Of Garda Uniform' The Irish Times (Dublin, April 4 2019) <https://www.irishtimes.com/news/crime-andlaw/headscarves-and-turbans-to-be-allowed-as-part-of-garda-uniform-1.3848524> accessed 12 January 2022. 25 Paul P Craig and Gráinne De Búrca, EU Law (7th edn, Oxford University Press 2020). 26 UN Special Rapporteur on Freedom of Opinion and Expression, Joint Declaration On Defamation Of Religions, And Anti-Terrorism And Anti-Extremism Legislation (Organization for Security and Co-operation in Europe 2008). 27Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), arts 9-10. 28 ibid art 10. 29 ibid art 9. 30 Osmanoǧlu and Kocabaş v Switzerland [2017] ECHR 14. 31 ECHR (n 28) Art 9. 32 Osmanoǧlu (n 31).

102

Ireland, the European Union and the World necklace was allegedly a breach of the airline’s uniform policy. 33 While the European Court of Human Rights accepted that the right to hold religious beliefs 34 was absolute, they noted that the manifestation of that belief must be proportionate with the protection of the rights of others, and as a fair balance was not struck in this case, Eweida’s rights were violated.35 Similarly, the CJEU ruled that employers could ban workers from observing religious symbols, such as the hijab, to maintain a neutral image for clients.36 The Court upheld the Achbita37 judgment that an internal rule banning all signs of belief cannot be considered direct discrimination. Furthermore, the Advocate General proposed a neutrality test which asserted that if the ban related to a characteristic relating to belief, then it was a ‘genuine and determining occupational requirement’ for the company’s neutrality policy, but there must be a subjective genuine need for the policy.38 Similarly, a customer’s desire to not be served by a hijabi Muslim woman was not a ‘genuine and determining occupational requirement’.39 Contrary to the small religious symbol in Eweida, a rule prohibiting large symbols like the hijab would be considered unjustifiable direct discrimination under Directive 2000/78.40 Based on these cases, it can be argued that the absolute right of religious freedom 41 has evolved under EU law to include subjective limitations, fundamentally controlling another citizen’s belief in such a way that is not within the justifiable limitations of public safety or the protection of the freedom of others.42 In conclusion, the right to religious freedom of expression is deeply rooted in the Irish legal system and supported by both domestic and international law. Ireland of the 21 stcentury respects and protects this right which is fundamental to combating the religious 33

Eweida and Others v United Kingdom [2013] ECHR 37. ECHR (n 28) art 9(1). 35 Eweida (n 34). 36 Joined Cases C-804/18 and C-341/19 IX v Wabe eV and MH Müller Handels GmbH v MJ (Grand Chamber, 15 July 2021). 37 Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (Grand Chamber, 14 March 2017). 38 ibid. 39 Case C-188/15 Bougnaoui and Another v Micropole SA (Grand Chamber, 14 March 2017). 40 Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation [2000] OJ L 303/16; Opinion of Advocate General Rantos, delivered on 25 February 2021. 41 ECHR (n 28). 42 ibid Art 9(2). 34

103

Ireland, the European Union and the World intolerance that is becoming more prevalent today. However, the increase in ‘neutral’ workplaces and a shift in what is deemed necessary to protect the rights of others has led to instability in the protection of these rights.43 Religious intolerance is usually manipulated to mask political and cultural tensions. Hence, accurate education of world religions and the elements that are significant to them and present in society, such as the hijab, would encourage understanding and tolerance.44

Sumaiyah Kholwadia, 'EU Headscarf Bans: The CJEU’S Missed Opportunity For Reflection On Neutrality In IX V Wabe And MH Müller Handels V MJ | OHRH' (ohrh.law.ox.ac.uk, 2021) <https://ohrh.law.ox.ac.uk/eu-headscarf-bans-the-cjeus-missed-opportunity-for-reflection-onneutrality-in-ix-v-wabe-and-mh-muller-handels-v-mj/> accessed 13 January 2022. 44 Australia's Joint Standing Committee on Foreign Affairs, Defence and Trade, Australia's Efforts To Promote And Protect Freedom Of Religion And Belief (HR, 2019). 43

104

Ireland, the European Union and the World

THE RIGHT TO HOUSING: IRELAND AND ABROAD Lara O’Donohue

Introduction Having a place to live is a fundamental requirement in every person’s life. International treaties such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic and Social Rights (ICESCR) have recognised housing as a fundamental social right. However, states differ in their recognition of housing as a right. In Ireland, despite consistent public support for the creation of a constitutional right to housing, successive governments have opposed this. 1 The courts have also refused to recognise an unenumerated right to housing. 2 This article will examine the approaches taken in South Africa, Scotland and Ireland, considering whether a constitutional right to housing should be adopted or whether it would have little material impact. International Recognition of the Right to Housing The right to housing is central to the exercise of other economic and social rights, as evidenced by its inclusion in the UDHR and the ICESCR. Access to housing impacts a person’s ability to access resources and opportunities and is a core element of personal life.3 Although Ireland has no domestic right to housing, it is a signatory to the aforementioned treaties. Art 25(1) of the UDHR recognises housing as a basic requirement and crucial element of human dignity.4 The ICESCR contains a right to an adequate standard of living in Art.11(1), explicitly including the right to housing. By ratifying these treaties, states are expected to promote the rights contained within them.5 Ireland has undertaken to ensure that an adequate standard of living is provided to its citizens, including access to housing. However, these rights are not justiciable in an Irish court. Individuals cannot compel the state to meet their obligations under the 1

Rory Hearne, Housing Shock: The Irish Housing Crisis and How to Solve It (Policy Press 2020) 229. 2 EBS v Kenehan [2017] IEHC 604. 3 Chester Hartman, ‘The Case for a Right to Housing’ (1998) 9 Housing Policy Debate 223, 230. 4 ibid, 227. 5 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations (1990).

105

Ireland, the European Union and the World treaties.6 Since there is no domestic right to rely on, there is no recourse available. 7 While international acknowledgement and articulation of the right is important, it does not result in significant improvements for individuals if they are unable to hold the state to account. For example, in O’Reilly, the plaintiffs sought to establish that the housing authority had a duty to provide them with accommodation, in this case, a halting site. 8 However, the court held that there was simply a statutory duty to ‘prepare and adopt a programme’.9 The court could only compel the authority to review this programme. This is of no practical benefit to a plaintiff with immediate needs. This lack of practical benefits can also be seen in the O’Donnell cases.10 Ellen O’Donnell was a disabled woman living in completely unsuitable conditions. In 2008, the court recognised that this violated her rights under Art 8 ECHR.11 However, O’Donnell was still living in the uninhabitable accommodation up until an appeal was heard in 2015.12 While this appeal resulted in her being awarded a declaration for ‘moderate’ damages, 13 considering that she had been living in these conditions for a decade, this seems like small consolation. Once again, Ireland’s treaty obligations did not result in actions being taken to benefit the individual. South Africa The South African Constitution was adopted in 1996, focusing on fundamental human rights for all.14 A right of access to adequate housing is contained in s26(1). The state has a constitutional duty to fulfil this right. If the state fails, the courts have the power to direct the government to make resources available to meet the obligation.15 However, the right is subject to the qualification in s 26(2), which states that reasonable measures must be taken, subject to the availability of resources.

Hearne [n 1] 227. ibid. 8 O’Reilly v Limerick Corporation [1989] ILRM 181. 9 ibid. 10 O’Donnell and Others v South Dublin County Council and Others [2008] IEHC 454, Ellen O’Donnell v South Dublin County Council [2015] IESC 28. 11 O’Donnell and Others v South Dublin County Council and Others [2008] IEHC 454. 12 Ellen O’Donnell v South Dublin County Council [2015] IESC 28. 13 ibid [86]. 14 Mashiene Katlego, Kola O Odeku, ‘A critical legal perspective on the context and content of the right to access to adequate housing in South Africa’ (2020) 10 Juridical Tribune 90, 92. 15 ibid, 93. 7

106

Ireland, the European Union and the World One of the most influential cases in this area is Grootboom.16 Here a group of people became homeless when they were evicted from their informal homes, located on private land. They had moved onto this land while they were on the waiting list for low-cost housing. They brought a challenge against the government for their failure to provide adequate housing. The court stated that the right contained in the constitution is a right of access, which means that the state is required to create conditions in which housing is accessible to all economic levels.17 Where people have the financial ability to afford housing, this right requires access to housing stock and legislative provisions for selfbuilds.18 Where they do not, the state must make provisions to provide housing for them. The court also noted that legislative measures alone would not satisfy the state’s duty.19 Action is required. The court found that the national housing programme was not capable of responding to those in urgent need. The state could not rely on their longterm goals in order to justify their failure to meet present needs. 20 They were required to fund and implement relief measures.21 In Grootboom, the Court noted that it was constitutionally bound to ensure the right to housing was protected.22 This means that there is a minimum protective level afforded to the right. However, deference is shown to the executive and legislature through the reasonableness standard. The burden imposed on the state must be considered in light of the availability of resources. The court can compel the government to spend more on housing in a particular case. However, there may not be sufficient resources available to vindicate every person’s right. Irene Grootboom, the lead plaintiff in the seminal case, stayed on the patch of land granted to provide temporary relief until her death in 2008.23 Many of the other plaintiffs did not receive state housing until 2011, a decade after the case was decided.24 Scotland

Government of South Africa v Grootboom [2000] ZACC 19. ibid [35]. 18 ibid [36]. 19 ibid [42]. 20 ibid [66]. 21 ibid [96]. 22 ibid [20]. 23 Matthew Wilhelm-Solomon, ‘Long Read: Irene Grootboom’s Unbuilt House’ (New Frame, 5th October 2020) <https://www.newframe.com/long-read-irene-grootbooms-unbuilt-house/> accessed 5 February 2022. 24 ibid. 17

107

Ireland, the European Union and the World There is no constitutional right to housing in Scotland. However, the Scottish legislation concerning homelessness and housing is considered some of the most progressive in the world.25 The definition of homelessness is very broad, allowing more people to qualify for protection.26 Individuals living in overcrowded or unsafe conditions are considered to fall under the heading.27 Scotland also abolished the ‘priority need category’ model used in the rest of the UK in their housing policy.28 Once a person qualifies as ‘homeless’ under the prescribed definition, they are entitled to accommodation provided by their local authority.29 The need for housing is prioritised over other policy objectives, which is often not the case when a priority model is used. 30 The priority model favours families with children when providing housing. 31 However, this meant that the needs of single homeless people, in particular homeless men, were not met. By removing the priority system, all homeless people are entitled to the same treatment and entitled to housing. This shows a rights-led approach to housing.32 If this right is not satisfied, individuals can take judicial review.33 However, since the recession, there has been disinvestment in social programmes, including social housing.34 Even with progressive legislation enabling homeless people to access accommodation, without funding for housing, this promise goes unfulfilled. The legal obligation to provide homes only exists if there are houses available. 35 Local authorities have a shrinking stock with which to fulfil this duty.36

Fiona King, ‘Scotland: Delivering a Right to Housing’ (2015) 24 Journal of Law and Social Policy 155. 26 ibid, 156. 27 Housing (Scotland) Act 1987, s 24(3)(d). 28 Beth Watts, ‘Homelessness, Empowerment and Self-reliance in Scotland and Ireland: The Impact of Legal Rights to Housing for Homeless People’ (2014) 43 Journal of Social Policy 793, 798. 29 ibid. 30 ibid, 803. 31 King [n 25] 157. 32 ibid, 158. 33 Mercy Law Resource Centre, Second Right to Housing Report: The Right to Housing in Comparative Perspective (2016) 12. 34 Douglas Robertson, Regina Serpa, ‘Social Housing in Scotland’ in Kathleen Scanlon, Christine Whitehead and Melissa Fernández Arrigoitia (eds), Social Housing in Europe (Wiley-Blackwell 2014) 49. 35 King [n 25] 161. 36 Robertson and Serpa [n 34] 57. 25

108

Ireland, the European Union and the World Analysing the Approaches to Housing In all cases, the right to housing, whether constitutional or statutory, is not absolute but is subject to restrictions. The existence of a constitutional right does not guarantee that this right is respected and vindicated in reality. However, it does provide all citizens with a basic level of legal protection, which they can use to challenge the state’s policy or lack thereof.37 Similarly with a statutory right, legislation may give way to reality when it comes to the availability of social housing. It can be argued that the creation of housing rights does not provide a solution to the issues facing states regarding homelessness, as the fact that a right is recognised does not guarantee its fulfilment. 38 However, there are advantages to having a legal right to housing. The existence of the right removes some of the discrimination that often exists in housing policy. 39 Where a universal right does not exist, housing is often provided for those who are deemed to be more ‘worthy’ and less morally appealing applicants, such as those with criminal records or substance abuse issues, are neglected.40 Where the right exists, the right to housing is recognised as more fundamental than other policy objectives or concerns. 41 In addition, legal rights empower the individuals who possess them. In Scotland, homeless people view themselves as ‘entitled rights-holders’.42 In comparison, Irish people receiving assistance are considered to be grateful beneficiaries. 43 It is arguable that this mindset reinforces the existing social inequality.44 Individuals view themselves as entitled to less than more ‘responsible’ citizens, who do not require assistance. Housing is not viewed as a right, but a privilege. Where a legal right exists, citizens are more empowered.45

Mercy Law Resource Centre [n 33] 22. Evadne Grant, ‘Enforcing Social and Economic Rights: The Right to Adequate Housing in South Africa (2007) 15 African Journal of International and Comparative Law 3. 39 Watts [n 28] 802. 40 ibid. 41 ibid. 42 ibid 804. 43 ibid 805. 44 ibid. 45 ibid. 38

109

Ireland, the European Union and the World Conclusion Recognising a right to housing will not solve the issue of homelessness. However, recognition signals the importance that the state places on housing. It empowers citizens to seek action on housing policy. It also provides a justiciable floor of legal protection. There is consistent public demand in Ireland for housing to be recognised as a constitutional right. This call can only be resisted for so long.

110

Ireland, the European Union and the World

‘ALL THE WRONG I DID, I HERE PROCLAIM WAS MADNESS’: THE DEFENCE OF INSANITY AND ITS MODERN CHALLENGES Jénovie Massala

Introduction Through the study and comparison of three jurisdictions’ approach to the insanity defence, this article will try to gauge the pertinence of the criticisms directed towards the defence of inanity. The definitions of the defence will be compared, then the focus will shift to the role of juries in such cases before concluding with the reforms proposed by critics of the defence of insanity. Scholars have argued that putting the criminally insane in a category which exonerates them of their actions implies that the ‘mentally ill don’t differ from the mentally healthy merely by degree, but in kind.’ 1 The following debate regarding the pertinence of the defence ensues: once the actus reus has been established, how should courts approach cases regarding insanity while promoting a universal application of the law which takes into account insanity? The traditional analysis of criminal liability starts by the drawing of a sharp line between the mens rea and the actus reus.2 This line is sharpened in cases where a defence of insanity is at issue. Tracy J’s ‘wild beast test’3 embodies the criticisms raised by the insanity defence which narrowly focuses on cognitive impairment and neglects the defendant’s ability to control their behaviour.4 This has sparked criticism, embodied by the UN Convention on the Rights of Persons with Disabilities which argues that the defence of insanity promotes inequality before the law.5 Differing Legal Definitions of Insanity Ireland, France and Sweden have statutory definitions of insanity. In Ireland, the M’Naghten6 rules inspired the Criminal Law (Insanity) Act 2006. This states that the Arlie Loughan, ‘Mental Incapacity Doctrines in Criminal Law’ (2012) 15(1) New Criminal Law Review. 2 Peter Brett, Inquiry into Criminal Guilt (1963, Halstead Press) ch 4. 3 Rex v Arnold (1724) 16 How. St. Tr. 765. 4 Rita James Simon and Heather Ahn-Redding, The Insanity Defense: The World Over (Lexington Books 2006). 5 Piers M Gooding and Tova Bennet, ‘The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities: Human Rights Brinkmanship or Evidence It Won't Work?’ (2018) 21(1) New Criminal Law Review 141. 6 R v M’Naghten [1843] 4 St Tr (ns) 817. 1

111

Ireland, the European Union and the World accused must be suffering at the time of a mental disorder, 7 didn’t know the nature or quality of the act, didn’t know what they were doing was wrong or was unable to refrain from the act to be not guilty by reason of insanity.8 The wording of the verdict implies that by virtue of their insanity, the accused is void of guilt. However, this test doesn’t reflect the nuances of mental illness and promotes the inequality which many jurists criticise. Mental illness does not necessarily void the perpetrators from criminal intent, as the Swedish definition implies.9 The Swedish Penal Code defines insanity as a result of a serious mental disturbance which reduced the accused’s capacity to realise the implications of the act, to adapt their conduct accordingly, or a mental disturbance, which reduced their capacity to control their conduct.10 However, guilt is preserved because ‘no causal connection is recognized between mental illness and crime as exempting offender from penal law sanctions’ 11 such as a criminal record or liability for damages. Nonetheless, their liability varies depending on the degree of insanity.12 France recently widened the definition of insanity from a purely medical one in Sarah Halimi.13 Statute only defines those who were suffering from a mental illness at the time of the crime which abolished their capacity to discern as criminally irresponsible. 14 A mere alteration of capacity amounts to criminal responsibility. 15 This definition seems to perfect the Irish one in its distinction between degrees of mental illness which restricts a lack of criminal responsibility to those who suffer from severe mental illness. However, a lack of accountability can still be observed due to the criminally insane being stripped of criminal responsibility. The French definition seems to ignore cases when the actus reus implies that the accused may have intended the crime, such as in Halimi16 where the antisemitic defendant tortured and defenestrated the Jewish victim.

Criminal Law (Insanity) Act 2006, s.5(1). ibid, s5(2). 9 Christer Svennerlind, Thomas Nilsson, Nóra Kerekes, Peter Andiné, Margareta Lagerkvist, Anders Forsman, Henrik Anckarsäter and Helge Malmgren, ‘Mentally disordered criminal offenders in the Swedish criminal system’, (2010) 33 International Journal of Law and Psychiatry 220. 10 Swedish Penal Code 1965, chapter 23.3.2. 11 Svennerlind et al (n 9). 12 ibid. 13 Cass. crim 14 avril 2021, n°20-80.135. 14 Code Pénal Français, article 221-1. 15 ibid. 16 Cass. crim 14 avril 2021, n°20-80 135. 8

112

Ireland, the European Union and the World The complexity of mental illnesses in addition to the difficulty of garnering accurate medical expertise makes it difficult to define insanity. Medical expertise is therefore essential. In Sweden, the prosecution and offender can ask for an investigation under s7 of the Personal Examination in Criminal Cases Act and only psychiatrists from the National Board of Forensic Medicine can make a diagnosis. 17 Similarly, France’s national board of psychiatrists’ medical expertise is used in criminal cases. Only Ireland has not clearly defined whose medical expertise can be relied on, which has resulted in conflicts between psychiatrists as to the degree of insanity. In DPP v Yusuf Ali Abdi,18 the jury based its assessment on the minority view despite the majority of the psychiatrists declaring insanity. The contrasting conclusions drawn by the prosecution and defence’s psychiatrists may have induced the jury into committing a miscarriage of justice. The Court of Public Opinion Internment in treatment facilities of criminals upon successful pleas of insanity are difficult for the public to accept.19 Sanism and pretextuality often result in a rejection of psychodynamic factors in explanations of criminal behaviour and emphasise a culture of punishment. Consequently, juries are increasingly defiant in Ireland, as DPP v Alchimonek exemplifies.20 The jury ignored judicial guidance and evidence of the accused’s fragile mental state resulting in an initial failure of the defence. This was quashed by the Court of Appeal who deemed it a miscarriage of justice due to the uncontested declaration of insanity by medical experts. Dependence on a jury for a final decision in such cases decreases the chance of an acquittal because the accused is no longer tried by a court of law, but the court of public opinion. The defence seems therefore less effective. The conflict between judges and the jury is a minor issue in Sweden as is the possibility of a miscarriage of justice because the judge is the sole decision-maker.21 However, the lack of a jury may make the decision less acceptable to the public. France seems to have

ibid. The People at the Suit of the Director of Public Prosecutions v Yusuf Ali Abdi [2021] IECA 237. 19 Michael L Perlin, The insanity defense. The hidden prejudice: Mental disability on trial (1st edn, American Psychological Association 2000). 20 DPP v Alchimionek [2019] IECA 49. 21 The Swedish Prosecution Authority, ‘From Crime to Sentence’, https://www.aklagare.se/en/from-crime-to-sentence/trial/ last accessed 22/01/2022. 18

113

Ireland, the European Union and the World found an entente whereby the jury deliberates with the judges and the resulting majority vote constitutes the decision.22 This method conserves the sovereignty of judges and recognises their legal expertise while guarding the public element necessary to facilitate the acceptance of criminal decisions. In addition, unlike Irish judges, French and Swedish judges are only bound to statute leaving no place for a judge’s individual opinion to flourish in areas where the law is explicit. 23 The Culture of Punishment Put to The Test Unlike in Ireland and France where the criminally insane aren’t convicted, insanity in Sweden is a mitigating factor which impacts the severity and duration of the punishment. However, in all three jurisdictions the criminally insane are interned in treatment facilities instead of prisons.24 In Ireland, the detention of the criminally insane is currently in the Central Mental Hospital 25 after an order of committal for treatment26 whereas in Swedish and French law, no such specification exists. However, Sweden has fostered a preference for internment in treatment facilities since the 2008 revision of the penal code for treatment facilities.27 This allows judges to imprison offenders who need limited psychiatric care, purposefully caused their insanity, or committed a highly culpable crime.28 Imprisonment despite a mental illness is therefore still possible. In France, detention is known as a ‘mesure de sûreté’ and includes regular medical examinations of the extent of the accused’s insanity. 29 This avoids the scrutiny which Irish detainment mechanisms faced in Ellis v DPP.30 The accused was given temporary release on numerous occasions during a three-year period due to his application for release on the grounds of a lack of evidence pertaining to his insanity. The lack of an independent committee to review the detention of the defendant in Ireland has been Vie Publique, Qu’est-ce qu’un juré d’assises? (last modified: 3rd May 2021) <https://www.vie-publique.fr/fiches/38246-quest-ce-quun-jure-dassises> last accessed 07 February 2022. 23 France: Code civil, article 4; Sweden: The Instrument of Government 1974, Chapter 11 article 5. 24 Swedish Penal Code, chapter 30.6.2; Loi n° 2008-174 du 25 février 2008; Criminal Law (Insanity) Act 2006, s.4(6)(a). 25 Peter Charleton, Paul McDermott, Ciara Herlihy and Stephen Byrne, Charleton & McDermott’s Criminal Law and Evidence (2nd edn, Bloomsbury Professional, 2020) ch 24. 26 Criminal Law (Insanity) Act 2006, s.4(6)(a). 27 Svennerlind et al. (n 9). 28 ibid. 29 Loi n° 2008-174 du 25 février 2008. 30 Ellis v DPP [1990] 2 IR 291. 22

114

Ireland, the European Union and the World criticised because statute doesn’t impose a definite release date after a conviction.31 Finlay J argues that this endangers the dignity of the accused because the mentally insane should only be detained provided the court is satisfied that their illness persists in a way that is necessary for the protection of others or themselves. 32 The Need for Reform The Swedish approach to insanity stands out as the most balanced as it retains the accountability of the accused and recognises the variety of mental illnesses through punishments depending on the degrees of insanity. However, this definition is incompatible with the Rome Statute which excludes criminal liability in cases of mental illness33 similarly to France and Ireland. Therefore, Sweden’s approach to criminal insanity is contradictory; why agree to an exclusion of criminal responsibility in international criminal matters but not in domestic ones? This confusion underpins calls for reform in all three jurisdictions. For example, the inclusion of an independent review board is considered a human rights obligation.34 Bournewood 35 affirmed this by requiring states to have an independent system to review the lawfulness of the detention of mentally unwell persons. 36 Other reforms include punishing mentally ill repeat offenders with imprisonment or imprisoning all guilty offenders but offering psychiatric help to those who are deemed mentally ill. The recent reform in France aims to reduce the insanity plea to those who do not provoke their psychosis if that psychosis resulted in a total lack of discernment. 37 Meanwhile, the debate regarding the dangers of jury convictions of undisputed insanity in Ireland since Alchimonek38 prove that the law is sensitive to the general public’s fears while trying to balance the right to liberty of ill individuals.

31Charleton

et al. (n 25). The People v. O'Mahony [1985] IR 517 at p. 522 33 Rome Statute, article 31.1.a. 34 European Convention on Human Rights, art. 5(4). 35 HL v United Kingdom (2005) 40 EHRR 32. 36 Charleton et al (n 25). 37 Simon Barbarit, ‘Irresponsabilité pénale : la loi définitivement adoptée par le Parlement’ (16/12/2021) Public Sénat) <https://www.publicsenat.fr/article/parlementaire/irresponsabilitepenale-la-loi-definitivement-adoptee-par -le-parlement-191636> last accessed 20/01/2022. 38 DPP v Alchimionek [2019] IECA 49. 32

115

Ireland, the European Union and the World

ECHOES FROM ACROSS THE POND: MAJOR US DECISIONS ON ABORTION AND THEIR IMPACT ON IRELAND Kieran Spencer

Introduction The development of the abortion debate in Ireland is an example of how legal developments in one country can have a profound impact on another jurisdiction. Despite important social, religious and constitutional differences between the US and Ireland, twentieth century US Supreme Court decisions sparked the constitutionalisation of abortion restrictions in Ireland. This article will briefly discuss the history of the abortion debate in the US and Ireland with a focus on the constitutional ‘right to privacy’ doctrine in light of the possibility that the US Supreme Court may overturn the seminal case of Roe v Wade.1 History in the US Prior to Roe, abortion and contraceptives were regulated at the state level by laws which generally prohibited abortion and restricted access to contraceptives. 2 In the late 20th century federal courts evolved a doctrine which held that certain aspects of the marital relationship were protected through an unenumerated constitutional right to privacy which took precedence over state law. In the case of Griswold v Connecticut, decided in 1965, the US Supreme Court held that the federal constitution protected a married couple’s right to use contraception. 3 Later in 1973, in Eisenstadt v Baird, the right to use contraception was extended to unmarried women.4 Roe v Wade expanded this sphere of protection to include a woman's right to terminate a pregnancy in the first trimester, stating that '[for] the State's important and legitimate interest in potential life, the ‘compelling’ point is at viability'. 5 This

Roe v Wade 410 US 113 (1973). David J Garrow, ‘Abortion before and after Roe v. Wade: An Historical Perspective’ (1999) 62 Albany law review 833. 3 Griswold v Connecticut 81 US 479 (1965). 4 Eisenstadt v Baird 405 US 438 (1972). 5 Roe v Wade (n 1) 163. 2

116

Ireland, the European Union and the World monumental decision struck down all State laws restricting abortion in the first trimester. Following Roe, the US Supreme Court pulled back and steadily weakened the right to abortion by permitting restrictions on such ancillary matters as using federal funds for abortion,6 and bans on certain abortion procedures.7 In Planned Parenthood v Casey the court even accepted that states could place restrictions on abortion even before the point of viability, provided they did not place 'an undue burden on a woman's ability to make [the] decision'.8 While Casey maintained the right to abortion in principle, many conservative states managed to prevent almost all abortion clinics from operating within their borders with laws that were not held to violate the undue burden standard in Casey. For example, a 2018 study found that the state of Missouri had only one abortion facility for every 1,365,575 women.9 More recently federal courts have permitted Texas to effectively ban all abortions 'after detection of a fetal heartbeat' using a novel private lawsuit enforcement scheme designed to evade judicial review. 10 In the summer of 2022 the US Supreme Court will hand down a decision in the case of Dobbs v Jackson, which is set to overturn the viability test from Roe as interpreted by Casey.11 In Dobbs, the Mississippi Solicitor General argues that Roe and Casey should be overturned on the grounds that they have 'no basis in the constitution' and have 'damaged the democratic process'. 12 If Roe is overturned many state legislatures would

Planned Parenthood v Casey 505 US 833, 1001 (1992) 885. See Gonzales v Carhart, 550 US 124 (2007). 8 Planned Parenthood v Casey (n 6) 874. 9 Alice F Cartwright and others, ‘Identifying National Availability of Abortion Care and Distance From Major US Cities: Systematic Online Search’ (2018) 20 J Med Internet Res e186. 10 In Re Whole Woman’s Health, Et Al 20 Jan 2022; Texas House of Representatives Public Health Committee (Texas House of Representatives), ‘Bill Analysis SB8’ (13.05.2021) 1; S B 8 (Texas 2021 Abortion Law) (US Tex 2021).In Re Whole Woman’s Health, Et Al 20 Jan 2022; Texas House of Representatives Public Health Committee (Texas House of Representatives), ‘Bill Analysis SB8’ (13.05.2021) 1; S B 8 (Texas 2021 Abortion Law) (US Tex 2021). A feotal heartbeat can be detected as early as 6 weeks after gestation. 11 See Amy Howe, ‘Majority of Court Appears Poised to Roll Back Abortion Rights’ (1 December 2021); Greer Donley and Jill Wieber Lens, ‘Second-Trimester Abortion Dangertalk’ (2021) 62 Boston College Law School Boston College Law Review 2145 ABI/INFORM Global, 2591493668; See also Dobbs v Jackson Women’s Health No 19-1392 (oral argument transcript) www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf. 12 Dobbs v Jackson Women’s Health oral argument transcript) (n 12) 4. 7

117

Ireland, the European Union and the World further restrict the practice or could even ban abortion altogether. 13 The recent history of abortion restrictions in Ireland seem to be the reverse of the process in the US. History in Ireland Until the late twentieth century, most of the Irish population held religiously conservative social views.14 Abortions were prosecuted under an 1861 preindependence law which criminalized, 'procure[ment] of a miscarriage' and stipulated a penalty of penal servitude for life.15 Despite this historical conservatism, the Irish Supreme Court began to adopt the doctrine of an unenumerated right to privacy in certain instances. In McGee v Attorney General, the majority of the Irish Supreme Court applied the US case of Griswold v Connecticut to find that married couples have a right to privacy which includes access to contraception.16 Despite the holding, a majority of the judges indicated that the Irish Constitution did not protect an unmarried woman’s right to use contraception. 17 One history of the Irish Supreme Court noted that one justice, Walsh J, did not cite Griswold v Connecticut in his more restricted decision on the right to use contraception despite his close personal connection with one of its authors, US Supreme Court Associate Justice Brennan.18 One can speculate that this is because Walsh J. wanted to distance the decision from the line of caselaw from Griswold which had just been used to establish a US right to abortion in Roe. 19 In response to the McGee holding, some in Ireland began to fear that the Irish courts might develop the ‘right to privacy’ into a constitutional prohibition on abortion restrictions.20 Religious conservatives thus championed the 8th Amendment, which

‘What If Roe Fell?’ (Center For Reproductive Rights, 2021) <https://reproductiverights.org/maps/what-if-roe-fell/> accessed 18 February 2022. 14 R Sinnott, ‘Cleavages, Parties and Referendums: Relationships between Representative and Direct Democracy in the Republic of Ireland.’ (2002) 41 European Journal of Political Research 811, 218, Academic Search Complete; See also Oran Doyle, The Constitution of Ireland: A Contextual Analysis (Bloomsbury Publishing Plc 2018) 173. 15 Offences Against the Persons Act 1861 ss 58–59. 16 McGee v Attorney General [1974] IR 284. 17 ibid 304, 320, 322, 328, 324. 18 ibid 322-329; See also Ruadhán Mac Cormaic, The Supreme Court (Penguin Ireland 2016) 173–74. 19 Ruadhán Mac Cormaic, The Supreme Court (n 18). 20 ibid generally 138ff. 13

118

Ireland, the European Union and the World passed by referendum with the support of two thirds of voters and amended the Irish Constitution to recognize foetal personhood and require the state to protect the foetal right to life.21 Irish courts interpreted the wording in the 8 th Amendment in a conservative manner, generally placing rights of a foetus before the rights of the pregnant woman. For example, in Attorney General v Open Door Counselling, the Supreme Court prohibited a counselling service from informing pregnant women about abortion services abroad, holding that while there was no law prohibiting such services, the Constitution now required that '[the] qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with the fundamental right to life of the unborn.'22 In 1992, the Irish position shifted significantly in Attorney General v X which involved a pregnant 13-year-old rape survivor. While Ireland also had no law prohibiting travel abroad for abortion at the time, the Attorney General sought and received an injunction from the High Court, which barred the girl from traveling to the UK to have an abortion.23 In response to the decision there was widespread public outcry both in Ireland and abroad, and large protests formed at the Irish parliament. 24 Speaking for a divided Supreme Court, Finlay CJ reversed this, holding that, the girl’s threats of suicide were a sufficient risk to her life to make an abortion permissible. 25 In subsequent referendums, Irish voters ratified constitutional amendments which overturned the state’s ability to prevent women from traveling abroad for an abortion as well as judge made prohibitions against abortion information services.26 Simultaneously voters rejected another amendment which would have removed “risk of self-destruction” as grounds for permitting an abortion.27

ibid 273ff; ‘Referendum Results 1937 - 2019’ (2 April 2021). Attorney General v Open Door Counselling [1988] IR 593 617. 23 Attorney General v X [1992] SC 1 (SC) 278. 24 Ailbhe Smyth, ‘The 'X' Case: Women and Abortion in the Republic of Ireland, 1992’ (1993) 1 Feminist legal studies 163, 166. 25 Attorney General v X [1992] SC 1 (SC) 278. 26 13th Amendment to the Irish Constitution, 14 th Amendment to the Irish Constitution. 27 12th Amendment to the Irish Constitution (rejected). 21 22

119

Ireland, the European Union and the World In 2012, an Irish hospital refused to allow an abortion to protect a sick woman, Savita Halappanavar, who later died as a result, sparking widespread public outrage. 28 In 2018 two thirds of Irish voters accepted a referendum which repealed the 8 th Amendment, leaving the Oireachtas to legislate on any abortion restrictions. 29 Abortion in Ireland is now regulated by the Health (Regulation of Termination of Pregnancy) Act 2018 which allows abortion in the first 12 weeks of pregnancy and allows a variety of health and policy exemptions permitting later terminations.30 Another 2018 poll showed that the Irish population holds more liberal views on abortion in comparison to Americans. 31 Dialogue between the two jurisdictions The history shows that the US Roe v Wade holding sparked the constitutional debate on abortion in Ireland. While early Irish cases on access to contraceptives such as McGee v Attorney General followed the same reasoning that led the US Supreme Court to strike down most bans on abortion, the 8 th Amendment enshrined a positive prohibition on abortion into Ireland’s constitution which irrevocably altered the trajectory of the debate in Ireland. The 8th Amendment restricted many basic rights of pregnant women which extended far beyond merely preventing them from receiving an elective abortion in Ireland. As the constitutional referendums stemming from the X case and the ultimate repeal of the 8 th Amendment following the death of Savita Halappanavar have shown, the inflexible nature of the constitutionally codified ‘foetal personhood’ sparked multiple grassroots movements in favour of abortion rights. In contrast the US jurisprudence maintains a negative requirement which prevents even its most conservative states from entirely banning abortions. This negative requirement has protected the ‘pro-life’ movement in the United States from difficulties that arose in Ireland when abortion was prohibited even in the most extreme circumstances. Without Roe conservative US states that choose to ban abortion will likely mirror the developments in Ireland following its adoption of the 8 th Amendment.

Kitty Holland, ‘How the Death of Savita Halappanavar Revolutionised Ireland’, Irish Times (28 May 2018) <https://www.irishtimes.com/news/social-affairs/how-the-death-of-savitahalappanavar-revolutionised-ireland-1.3510387>. 29 ‘Referendum Results 1937—2019’ (n 5). 30 Health (Regulation of Termination of Pregnancy) Act 2018 ss 9–12 (Ireland). 31 Alan Cooperman and Neha Sahgal, ‘Being Christian in Western Europe’ [2018] Pew Research Center 154. 28

120

Ireland, the European Union and the World Conclusion Legal developments in the United States have had a profound impact on the abortion debate in Ireland. Specifically, one can draw a direct line from the US holdings in Roe and Griswold to the constitutionalisation of the abortion issue in Ireland which led to the subsequent step by step legalisation which continues in Ireland today. Despite these reverberations, the discourse on abortion in Ireland is unlikely to emulate the US in the future. Abortion is no longer a constitutional issue in Ireland and as the 2018 referendum results show, the current position is broadly popular. 32 In contrast, if the US Supreme Court strikes down Roe, developments in conservative US states eager to ban abortion, may begin to resemble the evolution of abortion law in Ireland.

ibid.

121

Ireland, the European Union and the World

CIVIL FORFEITURE: CAN IT BE DONE WELL? A COMPARISON OF IRELAND AND THE UNITED STATES Jack McGee

This paper will begin with an overview of the American system of civil forfeiture. After providing a general critique, it will transition into a discussion of the Irish system, which has been considered a “good” example of the practice. It will then use the previous comparison as a backdrop against which we can weigh the virtues of considering Ireland a “model” for other countries to follow. It will conclude that the Irish system’s flaws come into sharp focus when applied to the American example. What Is Civil Forfeiture? This paper sets aside the necessary and ongoing debate regarding the morality and fairness of civil asset forfeiture and will instead focus on the efficacy of the practice and its regulation. However, a brief overview of what civil forfeiture is, and a few of the common critiques of the practice, is necessary. Civil asset forfeiture is a process under which a law enforcement agency seizes assets it suspects have been, or will be used, to commit a crime. Key to both its effectiveness as a law enforcement tool and the danger it poses to criminal justice is the lower burden of proof applied. As the name suggests, civil asset forfeiture operates under the civil burden of proof, the “balance of probabilities”. This gives significant flexibility to law enforcement agencies and allows them to target persons and assets that would otherwise slip through the high burden of proof sought in criminal prosecutions. However, it also raises significant concerns, especially regarding the presumption of innocence and the protection of personal property. The American System The present form of civil asset forfeiture in the United States was introduced during the height of the 'War on Drugs', a decades-long government effort to undermine drug use and trafficking1. These federal mandates liberalised the existing law and continue to EL Jensen & J Gerber ‘The Civil Forfeiture of Assets and the War on Drugs: Expanding Criminal Sanctions While Reducing Due Process Protections’ (1996) Crime & Delinquency 42(3), 421–434. 1

122

Ireland, the European Union and the World allow law enforcement agencies at every level of government to seize assets with very little regulatory oversight. One of the most necessary aspects of American civil asset forfeiture to make clear is that there is no single unified approach, with different jurisdictions employing wildly different versions of the practice.2 Even within single states, civil asset forfeiture is applied inconsistently, a consequence of the power it delegates to individual policing organisations. Furthermore, federal organisations can provide a loophole to local law enforcement in states that have abolished the practice by adopting their forfeitures through a process called ‘equitable sharing’3. American civil forfeiture has attracted particular critical attention because of the manner in which law enforcement agencies use the assets they seize. In most states, assets seized during civil forfeiture actions are retained by the law enforcement agencies themselves and are incorporated into their own budgets4. One police chief described the funds as ‘pennies from heaven’ that could be used for ‘a toy’, or anything else the department thought it needed.5 The Irish System Ireland’s entanglement with civil asset forfeiture also began in the 1980s, when the State introduced a temporary version of the practice to target funds controlled by terrorist organizations through the Offences Against the State Act (Amendment) 1985.6 It was then permanently woven into the fabric of Irish law through the Proceeds of Crime Acts 1996-2005 (POCA) in an effort to also combat organised crime.7

For an overview of the individual state approaches, see Institute for Justice, 'Grating State and Federal Civil Forfeiture Laws' (Policing for Profit, November 2015) <https://ij.org/report/policing-for-profit-2/grading-state-federal-civil-forfeiture-laws/> accessed 3 March 2022. 3 Charles Kucher, ‘Asset forfeiture: State restrictions and equitable sharing’ (2010). Master's Theses and Capstones 139 4 Lydia E Ellsworth, ‘Pennies from Heaven or Excessive Fines from Hell? Commonwealth v. 1997 Chevrolet Keeps Civil Asset Forfeiture's Threat to Homeownership in Purgatory’ (2018) 63 Vill L. Rev 125. 5 ibid 126. 6 Colin King, ‘Civil Forfeiture in Ireland: Two Decades of the Proceeds of Crime Act and the Criminal Assets Bureau’ in Ligeti and Simonato (eds), Chasing Criminal Money: Challenges and Perspectives on Asset Recovery in the EU (Hart Publishing 2017). 7 ibid.

123

Ireland, the European Union and the World Under the Irish system, the forfeiture of assets is managed by the Criminal Assets Bureau, which was created through supporting legislation for the POCA. The Bureau, which is technically a separate body corporate from the Gardai, is primarily composed of police officers, but its ranks also include employees from the Department of Justice, Department of Social Protection, and Revenue.8 Before the Bureau can use its power to seize or freeze assets, it must first seek High Court approval (given on the balance of probabilities).9 Why is the Irish system seen as better? Legal challenges to the Irish system have been ongoing since its introduction.10 Nevertheless, amongst both proponents and opponents, the Irish approach to civil forfeiture has been considered a model example of the practice internationally.11 The most significant source of praise is the Irish system’s oversight board, the aforementioned Criminal Assets Bureau. Unlike the United States, where the application of civil forfeiture is primarily guided by law enforcement agencies themselves, the CAB strictly oversees the use of the practice in Ireland. This serves as a counterweight to the self-interest of law enforcement, who are otherwise incentivized to use civil forfeiture as a means of casting as wide a net as possible to their direct financial benefit. This broad use of the power often implicates innocent persons and their property. We can see how the Irish model is more effective thanks to this oversight by examining how it is applied practically. Critically, the Irish model, as previously mentioned, operates on a post-conviction approach, where the Court has to issue a warrant before the forfeiture process can begin. As a result of this, the application of civil forfeiture in Ireland has been almost exclusively limited to those who have been otherwise implicated in high-level crimes. It is a tool applied most often as part of greater, targeted operation against those who can be easily proven to have significant connections to the criminal underworld or paramilitary organisations. Significantly, the CAB is restricted

Criminal Assets Bureau 'About Us' 3 March 2022 <https://www.cab.ie/about-us/> accessed 3 March 2022. 9 Council of Europe and the European Union, Impact Study of Civil Forfeiture” for the Criminal Asset Recovery Project in Serbia (2013) 10. 10 King (n 6). 11 Impact Study of Civil Forfeiture for the Criminal Asset Recovery Project in Serbia (n 9) 55.

124

Ireland, the European Union and the World by statute from pursuing property worth less than €5,000, which means that low-level offenders are rarely targeted by the practice.12 American civil forfeiture, on the other hand, does not require any advance warrant. This looser approach means that law enforcement can use civil forfeiture in their day-to-day activity. This particularly manifests in how widely it is used during routine traffic stops, where there was no original suspicion beyond a traffic offence.13 It is also often applied to punish who they suspect, but have not proven, are, or are involved with, low-level drug offenders. Rather than focusing on the ‘top’ of the rings they purport to target, the average seizure in many states is valued in the hundreds of dollars.14 This suggests that these actions are likely not focused on the so-called ‘kingpins’ the laws were introduced to undermine. This ‘shoot first, ask questions later’ approach often victimises innocent people. There have been a number of cases where the property of innocent, uninvolved third parties was targeted by police and seized, often costing those persons more to retrieve the asset than it was originally worth.15 Application to the United States On a surface level, there are a number of places where the US could learn from the Irish example. In particular, the statutory requirement to first secure a warrant before seizing or freezing a person’s assets could be useful in refining the application of the practice. After examining the Irish system more closely, however, it becomes clear that its benefits cannot be directly applied to other law enforcement systems, especially that of the United States. The reason for this lies in one the Irish model’s greatest strengths: the CAB. One of the most cited criticisms of the Bureau, and of the Irish model in general, is that it is run by members of the police, alongside members of other agencies. Oversight of their activities is, relative to other government bodies, quite limited. In this way, the structure

Proceeds of Crime (Amendment) Act 2016, s 4. William Freivogel, 'No Drugs, No Crime and just Pennies for School: How Police Use Civil Asset Forfeiture' (Pulitzer Center, 18 February 2019) <https://pulitzercenter.org/stories/no-drugsno-crime-and-just-pennies-school-how-police-use-civil-asset-forfeiture> accessed 3 March 2022. 14 Ian Macdougall, 'Police Say Seizing Property Without Trial Helps Keep Crime Down A New Study Shows They’re Wrong' (ProPublica, 14th December ) <https://www.propublica.org/article/police-say-seizing-property-without-trial-helps-keep-crimedown-a-new-study-shows-theyre-wrong> accessed 3 March 2022. 15 ibid. 13

125

Ireland, the European Union and the World of the Criminal Assets Bureau places a significant and precarious amount of trust in An Garda Siochana. Bringing this system to the US would do little to change the overall effectiveness and judiciousness of civil forfeiture, as American law enforcement agencies have shown little interest in effectively self-regulating. If anything, a police-run oversight board could act as a bureaucratic obstruction to greater civil forfeiture reform, especially at the federal level. And, even if states were to introduce their own individual boards or bureaus, the ‘equitable sharing’ loophole mentioned earlier would allow individual law enforcement agencies to circumvent these restrictions thanks to federal intervention. Solutions to the significant issues with civil forfeiture in the United States are necessary, but they cannot come from within law enforcement agencies themselves. Applying the Irish system against American policing reveals the plastered-over cracks inherent in the Criminal Assets Bureau. Despite the plaudits it has received, the fairness of the CAB is directly tethered to the ethicality of those who control its use. While this has not yet posed significant issues in Ireland, the potential it provides for abuse undermines its use by other states, particularly America, as a “model” example of civil forfeiture. Conclusion Civil forfeiture, by its very nature, is a sweeping and potentially dangerous tool. Despite what proponents of the Irish model may argue, there is no way for the practice to be effectively employed without aspects of it being left open to manipulation. The paperthin divider separating the Irish model from a far more dysfunctional one is its (relatively) healthy culture of policing, rather than its regulatory oversight. A significant overhaul of the American approach to law enforcement would be necessary before the Irish model would be effective. While the Irish approach to civil forfeiture should be lightly praised, especially for its post-conviction approach, the weaknesses inherent in its regulation mean that it should not be used as a model for reform.

126

Ireland, the European Union and the World I’M A SLAVE FOR YOU: IRELAND’S WARDSHIP SYSTEM AND A GLIMPSE INTO BRITNEY SPEARS’ CONSERVATORSHIP Eve Reidy

In 2021, the conservatorship of Britney Spears received widespread media attention. Despite public speculation that she was not incapacitated Britney stayed under a conservatorship for 13 years. Spears’ story and the subsequent media frenzy cast a spotlight on the conservatorship system operating in the U.S. Conservatorships and their operation have since come under intense scrutiny with many people asking if such systems exist in their own countries and if they are still appropriate in today’s world. California courts define conservatorship as ‘a court case where a judge appoints a responsible person or organization (called the ‘conservator’) to care for another adult (called the ‘conservatee’) who cannot care for himself or herself or manage his or her own finances.’1 There are an estimated 1.3 million adults in the U.S. under this arrangement with conservators controlling at least $50 billion in assets. 2 Ireland operates a wardship system which shares many features within the U.S. conservatorship system. This wardship system is governed by the Lunacy Regulation Act, a 150-yearold law established in 1871.3 Currently, there are 2,124 adult wards of court in Ireland,4 all of whom have lost many of the rights other citizens consider fundamental. Wards of State complain that the system strips them of their voice. 5 When a person becomes a ward of court, the court is vested with jurisdiction over all matters relating to the individual and the individual’s estate. In exercising this jurisdiction, the court is subject only to the provisions of the Constitution.6 In effect, the ward loses their legal agency, meaning they can no longer make decisions for themselves including decisions California Courts, The Judicial Branch of California, ‘Conservatorship’ <https://www.courts.ca.gov/selfhelpconservatorship.htm?rdeLocaleAttr=en#:~:text=A%20cons ervatorship%20is%20a%20court,his%20or%20her%20own%20finances.> accessed 23 February 2022. 2 National Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination (March 22, 2018). 3 Lunacy Regulation (Ireland) Act 1871, s 6. 4 Kieran Dineen, RTE Investigates, The people caught in Ireland’s wardship system(November 10, 2021). 5 ibid. 6 Re A Ward of Court (Withholding Medical Treatment) (No.2) [1996] 2 IR 79. 1

127

Ireland, the European Union and the World about medical treatment, travel7 and until recently, marriage.8 The lack of financial independence is arguably one of the most fundamental rights lost. All assets owned by the ward are lodged with and controlled by the Office of the Wards of Court9.However, many wards of State claim they do not recall receiving account statements or updates on their bank account.10 Currently, the total fund in Ireland is worth €1.5 billion.11 Two issues with the current system are the rights it impedes and its lack of clarity. The law does not include a definition for ‘unsound mind’ which can give rise to ‘huge difficulties’, as noted by Patricia Rickard Clarke, Chairperson of Safeguarding Ireland.12 Furthermore, a 2017 report carried out by the National Safeguarding Committee heavily criticised the way in which medical assessments are conducted. Reports from General Practitioners assessments have been found to be ‘as little as two lines’.13 The reports also note incidents where respondents have been left with no representatives at hearings.14 Conservatorships as well as wardships, operate under the guise of best intention for the vulnerable person. However, often this intention is not fulfilled especially when family members are put in control, as made evident by the Britney Spears’ case. In Ireland, the National Safeguarding Committee reported that the procedures for the wardship system, rely ‘excessively on the integrity of families…acting in the best interests of vulnerable adults.’15 This reliance was demonstrated in a 1997 case, where the applicant, Mr Heavey, convinced a High Court jury that he was of sound mind and able to manage his personal and financial affairs.16 This was the first time a wardship case had not been held in camera and was therefore open to public scrutiny, like Spears’ conservatorship case. The application for Mr Heavey to become a ward of State only arose due to a family conflict over the deceased father’s will. The fact that this case arose out of a disputed will presents doubts around the integrity and intention of some wardship applications. Additionally, both the US Spears case and the Irish example involving Mr 7

National Safeguarding Committee, Review of current practice in the use of wardship for adults in Ireland (December 2017) 73. 8 Assisted Decision-Making (Capacity) Act 2015, s 7.1. 9 Lunacy Regulation (Ireland) Act 1871, s 49. 10 RTE Investigates (n 4). 11 ibid. 12 RTE Investigates, (n 4). 13 National Safeguarding Committee (n 7) 62. 14 National Safeguarding Committee (n 7) 10. 15 National Safeguarding Committee (n 7) 9. 16 Carol Coulter, ‘Dublin man wins action in ward of court case’ The Irish Times (Dublin, 5 March 1997).

128

Ireland, the European Union and the World Heavey raise a question on whether conducting such hearings in public affects the outcome. In 2015, the Lunacy Regulation Act was replaced by the Assisted Decision-Making (Capacity) Act, which aims to bring the wardship system to an end. Unlike the current wardship system, this Act prioritises a person’s will and preferences as opposed to their ‘best interests’.17 However, despite the Act being enacted in December 2015, it has not yet been fully commenced. The most promising change within the Act, the Decision Support Service (DSS)18 has not yet become available to the public. Consequently, 1,877 adults have become Wards of Court since 2016 and are bound into the old system until the DSS opens.19 The new system, once fully operational, will be supervised by the DSS and will operate on a three-tier system where wards will be classified based on their capacity. On the lower tier, wards can appoint a decision-making assistant to help them make decisions and explain complex issues.20 On the middle tier, wards can appoint a co-decision maker who has legal authority to make joint decisions.21 Lastly, on the higher tier, the court can appoint a decision-making representative to make certain decisions on behalf of wards.22 The Act provides for individuals currently in the wardship system to have their capacity assessed and brought under this new statutory framework. Following pressure from advocacy groups and complaints regarding the delay to certain provisions of the Act, the Government finally approved in 2020 the drafting of legislation which would bring an end to the wardship system. Minister for Children, Equality, Disability and Youth, Roderic O’Gorman and Minister of State with special responsibility for disabilities, Anne Rabitte are responsible for drafting the Assisted Decision-Making (Capacity) (Amendment) Bill 2021 which will amend the Assisted Decision-Making Act 2015.23 Eager to not delay the changes any further, the government has committed to implementing this amendment by June 2022. Áine Flynn, ‘Ireland’s wardship system shares features of Britney Spears’ legal arrangement’ The Journal (Dublin, 17 July 2021). 18 Assisted Decision-Making (Capacity) Act 2015, s 9. 19 Shauna Bowers. ‘Almost 2,000 wards of court since assisted decision laws brought in six years ago’ Irish Examiner (Dublin, 1 August 2021). 20 Assisted Decision-Making (Capacity) Act 2015, s 10. 21 Assisted Decision-Making (Capacity) Act 2015, s 16. 22 Assisted Decision-Making (Capacity) Act 2015, s 36. 23 ‘Bill to end wardship system in Ireland’ Law Society Gazette Ireland (Dublin, 22 November 2021). 17

129

Ireland, the European Union and the World Additionally, the DSS is due to become fully operational by July 2022. The proposed Bill includes measures which will bring Ireland in line with the United Nations' Convention on the Rights of Persons with Disabilities in Ireland as the current system is contrary to the spirit and intent of the UN Convention, ratified by Ireland in 2018.24 The reform is arguably long overdue and has received support from activists and legal authorities familiar with the system. Barry Sheridan, Chief Executive of Down Syndrome Ireland, called for the Act to urgently be implemented. Sheridan stated that until the Act is fully implemented it ‘leaves vulnerable people having their capacity challenged using…a 150-year-old law’.25 The Irish courts have also recognised a need for reform. In Re a Ward of Court (No. 2)26 the Supreme Court acknowledged that wardship strips a person of their fundamental right to make choices about their life. Denham J described the right to be treated with dignity as ‘an unspecified right under the Constitution’.27 Dignity is strongly associated with the right to privacy as already specified in McGee v Attorney General28, Norris v Attorney General29 and Kennedy v Ireland30. The courts in recent years have placed a strong emphasis on autonomy as a constitutionally protected value which is inherent on the rights to liberty and due process and indeed it was recognised as a distinct personal right in Re a Ward of Court (No. 2).31 This support from the Supreme Court reinforces the recommendations made by the HSE National Safeguarding Committee in their report and adds legal support to the argument for change.32 Some argue that the wardship systems and others like it are a necessary limitation on personal rights to protect vulnerable adults, but ‘a gilded cage is still a cage’.33 After examining the serious consequences of such a system, it is fair to say that this is in fact a draconian system that fails to respect the dignity and equal rights of persons with Mary Carolan, ‘Ward of court system does not protect vulnerable adults – HSE’ The Irish Times (Dublin, 16 January 2018). 25 Bowers (n 19). 26 Re a Ward of Court (No 2) [1996] 2 IR 79. 27 ibid 79 [351] (Denham J.). 28 McGee v Attorney General, [1974] IR 284. 29 Norris v Attorney General [1984] IR 36. 30 Kennedy v Ireland [1987] IR 58. 31 Re a Ward of Court (No 2) [1996] 2 IR 79. 32 The National Safeguarding Committee (n 7). 33 Surrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] 2 All ER 585 [46] (Lady Hale). 24

130

Ireland, the European Union and the World disabilities. Law should reflect the climate of an era and one can be certain in saying that today’s understanding of people with disabilities is very different to the understanding in 1871. Therefore, it is of utmost importance that the 2015 Act is fully implemented as soon as possible to reflect modern views on disability. This new system will improve respect for fundamental rights by giving control and rights back to the Ward of State. While the 2015 Act is not perfect, it is recognition of the primacy of an individual’s will and preference and represents a paradigm shift from the paternalistic approach of best interests as applied by the 1871 Act. Nonetheless, it is critical that the government listen to advice and recommendations from both medical professionals and advocates on how to further improve the system and to ensure that any interaction with a person who lacks capacity to decide complies with human rights standards and respects their inherent dignity, including their right to autonomy and self-determination. Never let it be forgotten that ‘people with disabilities, both mental and physical, have the same human rights as the rest of the human race.’34

34ibid

585 [36] (Lady Hale).

131

Ireland, the European Union and the World

APPLE, THE ECJ AND THE OECD: THE END OF IRELAND’S CORPORATE TAX REGIME? Calem Martin

Introduction Irish lawmakers breathed a sigh of relief following the General Court’s opinion in Ireland v Commission.35 A four-year standoff between Ireland and the European Commission, following its ruling that Apple owed Ireland €13 billion in back taxes, seemed resolved. In ruling that Ireland’s tax arrangement with Apple did not constitute state aid and that therefore no money was owed, the General Court seemed to have spared Ireland’s tax regime a severe blow. Despite this verdict, the future of Ireland’s tax regime remains uncertain. The Commission immediately announced its intention to appeal. Meanwhile, the case has put Irish tax arrangements under unprecedented scrutiny which may lead to legislative responses, the most significant of which is the introduction of a global minimum corporate tax. This paper argues that Ireland’s tax regime in its current form will not survive these developments. Ireland’s ability to make favourable trade rulings with multinational corporations will be severely undermined by the Apple case. Even if the Court of Justice does not overrule the General Court, legislation is likely to curtail such activities. Moreover, the global minimum tax will end Ireland’s 12.5% corporate tax rate which has been a major draw for foreign direct investment. Ireland v Commission The case concerned two subsidiaries of Apple, Apple Operations Europe (AOE) and Apple Sales International (ASI), both of which were incorporated in Ireland but were not tax resident there.36 The subsidiaries did not pay US corporate tax as they were incorporated in Ireland. However, they were exempt from most Irish taxes as their head

Cases T-778/16 and T-892/16, Ireland and Others v European Commission [2020] ECLI:EU: T:2020:338. 36 On State Aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple Commission Decision (EU) 2017/1283 [2016] OJ L187 [45].

132

Ireland, the European Union and the World office was deemed to be that of their parent company in California. 37 The issue was whether two Irish tax rulings made in 1991 and 1997 provided Apple with state aid in violation of Article 107(1) TFEU.38 As the tax rulings were directed solely towards Apple, the Commission held that they were selective.39 Meanwhile, as they gave Apple the advantage of substantially lower taxes, it was held that they had the effect of distorting competition.40 According to the Commission, their effect was that ASI and AOE had substantially lower taxable profit than that of similar companies with corporate tax arrangements in Ireland. In determining this, the Commission applied the arm's length principle that the allocation of profits between associated companies must be reasonably approximate to what would occur between independent companies as a result of normal market forces. 41 Apple's allocation of profits between its subsidiaries violated this principle and gave them an unfair advantage. This was the basis behind the Commission’s order that Apple pay Ireland €13 billion. The General Court reversed this decision. It held that the Commission failed to show that the Irish tax rulings gave a selective advantage to the Apple subsidiaries.42 While the Court rejected Ireland’s argument that the arm’s length principle did not apply, it held that the allocation of profits between the subsidiaries did not breach this principle. 43 Meanwhile, it held that even if the Irish tax authorities had given the Apple subsidiaries favourable treatment to other companies in a similar situation, this was within the scope of their discretionary powers.44 Therefore the tax rulings did not constitute state aid. This ruling vindicated the arguments of Ireland and Apple and appeared to support the legality of Ireland’s provision of favourable tax rulings to multinational corporations. Although a favourable outcome for the Irish government, the case is not resolved. Following this verdict, Commission Executive Vice-President Margrethe Vestager 37

Chantal C Renta, 'A Cute Cowboy Stole Our Money: Apple, Ireland, and Why the Court of Justice of the European Union Should Reverse the European Commission's Decision' (2018) 24 Sw J Int'l L 177, 196. 38 On State Aid (n 2) [9]. 39 ibid [361]. 40 ibid [222]. 41 ibid [235]. 42 Cases T-778/16 and T-892/16, Ireland and Others v European Commission [2020] ECLI:EU:T:2020:338 [505]. 43 ibid [225], [249]. 44 ibid [495]-[496].

133

Ireland, the European Union and the World announced the intention of the Commission to appeal the case before the Court of Justice.45 In the appeal, the Commission argued that the General Court made several errors of law relating to the finding of advantage.46 It further argued that the Court of Justice should set aside the verdict and refer certain questions back to the General Court. The appeal remains pending. A ruling against Ireland would have the effect of drawing out an already protracted case while increasing uncertainty among investors. It would force Ireland to reassess several of its tax rulings with other multinationals. Ireland’s use of tax loopholes to attract multinationals would be severely hindered. Meanwhile, the intake of €13 billion in unwanted tax revenue would provoke a response from the US, who believe that the income, if collected, should be theirs. While this case may not in and of itself end Ireland’s tax regime, it may provoke a legislative response which would erode the existing system. Legislative Reforms The Court of Justice may uphold the verdict of the General Court. However, the saga has put heightened scrutiny on the tax arrangements between multinational companies and so-called ‘tax havens’. The Apple subsidiaries in Ireland were paying extremely low effective tax rates due to their ability to shift profits offshore, with ASI only allocating €50 million of its €16 billion profit to Ireland. 47 While Ireland may win this particular case, both the US and EU have made moves to curtail companies shifting profits offshore to avoid their tax liabilities. It could be argued that Apple should not be punished for making use of a bona fide tax loophole.48 However, these loopholes, while important tools for Ireland, may be closed by legislative reform. The Biden administration has proposed a minimum tax of 21% to European Commission, ‘Statement by Executive Vice-President Margrethe Vestager on the Commission's decision to appeal the General Court's judgment on the Apple tax State aid case in Ireland’ (25 September 2020) <https://ec.europa.eu/commission/presscorner/detail/en/statement_20_1746> accessed 15 January 2022. 46 Case C-465/20 P, Appeal brought on 25 September 2020 by European Commission against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 15 July 2020 in Joined Cases T-778/16 and T-892/16, Ireland and Others v Commission [2021] 2021/C 35/33. 47 Rita Barrera and Jessica Bustamante ‘The Rotten Apple: Tax Avoidance in Ireland' (2018) 32(1) The International Trade Journal 150, 152. 48 Renta (n 3) 196. 45

134

Ireland, the European Union and the World be recouped from the foreign earnings of all US multinationals. 49 This would reduce the tax incentive for such companies to shift profits abroad and therefore undermine the Irish tax model, which corporations such as Facebook, Google and Apple have taken advantage of. This would present Ireland with a dilemma. Ireland could risk continuing with a lowtax model, despite the fact that its benefits would be greatly reduced. Conversely, it could increase its corporation tax to a moderate level, which would be a profound alteration of the state’s fiscal model. Regardless of the direction Ireland decides to move in, such a measure would change the nature of the Irish corporate tax system, which is in many ways designed to attract US multinationals. The European Commission has also sought to clamp down on tax avoidance by multinational corporations. In her statement on the Apple case, Commissioner Vestager stressed that the Commission will propose ‘legislation to address loopholes and ensure transparency’.50 Having previously investigated Google and Amazon, the case reflects the Commission’s desire to eliminate illegal state aid and tax loopholes, which it has indicated will continue regardless of the outcome before the Court of Justice. 51 Ireland has plenty to be concerned about in maintaining its corporate tax structure due to the potential responses from both the EU and US. The US in particular has an incentive to act against such arrangements and to prevent the Commission ruling that unpaid tax from US multinationals be paid to the EU member state they reside in. 52 Therefore, while the appeal is a concern to Ireland, the response of the US would severely limit Ireland’s ability to operate as it has previously. Global Minimum Tax While the Apple case concerns individual arrangements with multinational corporations, Ireland’s tax system is facing challenges on another front. Ireland’s 12.5% corporate tax rate has long been considered instrumental in attracting foreign direct

Kimberly Clausing, Emmanuel Saez and Gabriel Zucman, ‘Ending Corporate Tax Avoidance and Tax Competition: A Plan to Collect the Tax Deficit of Multinationals’ (2021) UCLA School of Law, Law-Econ Research Paper 20/12, 4 <https://ssrn.com/abstract=3655850> accessed 15 January 2022. 50 European Commission (n 11). 51 ibid; Renta (n 3) 202. 52 Renta (n 3) 204-6. 49

135

Ireland, the European Union and the World investment.53 While European leaders have at times criticised Ireland’s substantially lower corporate tax rate and made references to fiscal harmonisation, this arrangement finally seems to be coming to an end. On 7 October 2021, the Irish government agreed to global tax reforms that would introduce a minimum corporate tax of 15%. 54 There are some caveats. The increase will not be introduced until 2023 and even then will only affect firms with a turnover above €750 million.55 However, this represents a fundamental shift in Irish tax policy. Even during the most stringent Troika-imposed austerity, corporate tax was considered non-negotiable by successive Irish governments.56 The fact that the Irish government has accepted an alteration, albeit a partial one, displays an irreversible move away from the status quo. It is a concession that Ireland must adapt to reforms amid an increasing belief that corporate tax is a global issue rather than one for national policymakers. While it remains to be seen how this change will affect Ireland’s ability to attract investment, the longstanding 12.5% corporate tax rate is finally coming to an end. Conclusion Ireland’s corporate tax regime is undergoing several developments that it will be unable to survive. The Ireland v Commission appeal before the Court of Justice may determine that its arrangement with Apple constituted state aid and cause the Irish state to unwillingly recoup €13 billion. Significantly, that would render several of Ireland’s tax rulings with US multinationals illegitimate. Meanwhile, the US has formulated a policy that would eradicate the ability of its multinationals to use states such as Ireland to allocate profits offshore. Finally, in signing up to the global minimum tax, Ireland is accepting that it must move beyond its most vital fiscal policy. While Ireland’s corporate tax regime may not be at an end just yet, it is nearing an inevitable defeat from either legislative or judicial means.

Boyu Wang, ‘After the European Commission Ordered Apple to Pay Back Taxes to Ireland: Ireland's Future in the New Global Tax Environment’ (2018) 25 Ind J Global Legal Stud 539, 544. 54 Department of Finance, ‘Ireland joins OECD International Tax agreement’ (7 October 2021) <https://www.gov.ie/en/press-release/59812-ireland-joins-oecd-international-tax-agreement/> accessed 15 January 2022. 55 ibid. 56 Julien Mercille and Enda Murphy, Deepening Neoliberalism, Austerity, and Crisis: Europe’s Treasure Ireland (1st edn, Palgrave Macmillan 2015) 60. 53

136

Ireland, the European Union and the World

HOW A HISTORY OF CENSORSHIP SHAPED IRELAND AND CHINA’S INITIAL APPROACHES TO INTERNET REGULATION Emer Nolan

Internet regulation became a pressing legal issue for states from the moment it became widely available to the public. The question of balancing citizens' freedom of speech with the need for the protection of vulnerable users has been answered differently by different actors such as governments, internet service providers and international organisations. The subject of this article is a comparison of the different early approaches towards internet regulation taken by Ireland and China, two countries that had previously adopted similar positions in relation to censorship. The History of Censorship in Ireland – The Influence and Legacy of the Catholic Church The name chosen for the Government appointed ‘Committee on Evil Literature’ of 1926 is a strong indicator of Ireland’s early attitude towards censorship and its acceptance of its importance within society. The constitutional offence of blasphemy that applied to all publications within the state up until the 2018 referendum, bears little resemblance to the role of the Roman censor in maintaining control over the empire. Meanwhile in Ireland, under the Censorship of Publications Acts 1929-1967,1 the Censorship of Publications Board was empowered to censor ‘the publication or the sale and distribution of unwholesome literature.’2 An example of the influence of the Catholic Church over Ireland’s ‘draconian’ 3 censorship regime, is that of information pertaining to abortion and contraception. The denial of this information to women and their families for decades demonstrates the strength of the legacy left by the Church in relation to censorship. The Irish censor James Montgomery, tasked with the role of determining which films should be banned or have cuts made in Ireland from 1923 to 1940, published works such as ‘The Menace

Censorship of Publications Acts 1929-1967. ibid. 3 Kevin Rockett, ‘Protecting the Family and the Nation: The official censorship of American cinema in Ireland, 1923‐1954’ (2000) Historical Journal of Film, Radio and Television, 20(3) 283-300. 2

137

Ireland, the European Union and the World of Hollywood’ and acted as a ‘moral sieve’ for films of an un-Christian nature.4 His successor Dr Richard Hayes changed the title of the 1940 film ‘I Want a Divorce’ to ‘The Tragedy of Divorce’.5 Efforts were made to challenge the law in this area in cases such as Melton Enterprises Ltd v The Censorship of Publications Board Ireland.6 The move away from such a paternalistic censorship structure took place in 2008 with the change in title to the ‘Classifier of Films’. The mission statement of the Irish Film Classification Office (IFCO) states that the aim of the office has the protection of young people at its core and references freedom of expression. 7 This is a clear demonstration of the societal change that has taken place in Ireland, and the need for public bodies and legislature to reflect this change. The History of Censorship in China – Mao’s CCP and the Legacy of Imperial China The Censorate, established during the Qin dynasty (221-207BC) was an organ of political and administrative control that has been a part of China’s governmental structure for over two millennia. Although this was a tool of surveillance rather than censorship, it has significance when the control of media and thought that exists in present day China is considered.8 Government control of the media under the leadership of Mao Zedong could be considered ‘among the most complete control’ of information possible for a country. 9 The control that the government exercised over the media rendered journalism little more than a mouthpiece for CCP rhetoric and propaganda.10 These sweeping censorship measures included not only the banning of specific publications, but also encouraged an environment of self-censorship where citizens reported their friends and family to authorities.11

ibid. ibid. 6 Melton Enterprises Ltd v The Censorship of Publications Board Ireland [2003] IESC 55. 7 Irish Film Classification Office, Annual Report of the Director of Film Classification [Department of Justice and Equality] 2017. 8 Charles Hucker, ‘The Traditional Chinese Censorate and the New Peking Regime’ (1951) American Political Science Review 45(4) 1041 – 1057. 9 Margaret E. Roberts, Censored: Distraction and Diversion Inside China's Great Firewall (Princeton University Press 2018) 99–109. 10 Susan Shirk, China: Fragile Superpower (OUP 2007); Roberts (n 9). 11 Roberts (n 9). 5

138

Ireland, the European Union and the World Through the transition to a market economy under Deng Xiaoping beginning in 1978 a change in the provision of information to citizens also took place. In order to reduce the economic burden being placed on the government, control over the media was loosened.12 This transition simultaneously saved the government money and aided the move towards an open economy. Although freedom of expression did not exist in the way that it does in countries such as the United States, enforcement was loosened especially in comparison to the Mao era.13 However, the state retained large amounts of control over the media, through implicit and explicit means. An example of this control being exercised is the media block that followed the events leading up to, during and after the Tiananmen Square protests in June 1989. The lack of widespread internet access at the time aided the government’s control over coverage of the events, however the protests marked a turning point in the information control strategy employed. 14 Drawing a parallel between the roots of censorship in Ireland and China, it is interesting to observe the lengths that both nations were willing to go to in order to control public opinion, albeit with different motivations. The influence of the Catholic Church and it’s need to control the morality of the people of Ireland through the banning of films and other publications is not incomparable to Mao’s desire to promote Party ideology and Leninist principles.15 Early Internet Regulation in Ireland – a Slow Response Internet regulation in Ireland has been slow to develop, to the detriment of user safety. Rather than issuing one comprehensive Bill addressing internet regulation, pre-existing legislation has been amended and interpreted so as to cover legal issues surrounding expression on the internet. Some elements of the online sphere were provided with specific legislation in the early years of the internet, such as the Electronic Commerce Act 2000. However in other cases a different approach was taken, the Non-Fatal Offences Against the Person Act 199716 which covered the criminal offence of harassment, despite the availability of the internet to the general public at the time of its publication, made no reference to potential online harassment. Provision is made for communications ‘by telephone’.17 This is an area in which no early response to the 12

Lynch (1999, Chapter 2). Roberts (n 9). 14 ibid. 15 ibid. 16 Non-Fatal Offences Against the Person Act 1997 10(1). 17 ibid. 13

139

Ireland, the European Union and the World internet existed and the archaic nature of the legislation18 hindered efforts to combat cyber harassment and communications via the internet that could potentially be censored. Difficulty was also encountered in the drafting of the Child Trafficking and Pornography Act 1998 in relation to internet regulation. This is an area where internet regulation and a limitation on freedom of expression in order to protect vulnerable users appears paramount as the existence of the internet facilitates crimes against them.19 However, the rapid development of internet technology led to difficulties surrounding the Acts provisions, soon after it was commenced.20 Early academic comment regarding internet regulation’s possible impact on freedom of expression indicated that protection of the common good should be paramount, particularly in relation to vulnerable users.21 It was noted that while taboos about sex have declined in Irish society, that child pornography is still considered highly offensive and merits restricting rights of free expression and speech.22 Early Internet Regulation in China – a Sweeping Approach By 1995, it was decided that to open China up to the internet would be in the country’s best interest, to promote economic growth. With this expansion, came strategic limitations to freedom of expression and censorship. 23 The CCP regulation of media takes the form of multilevel management,24 with the Central Publicity (also known as propaganda) Department (CPD) and the State Council Information Office (SCIO) as the principal censors.25 The SCIO is responsible for regulating internet news sites and was established in 1990, ahead of any Irish legislation.26 The State also maintains a

Michael O’Doherty, Internet Law (Bloomsbury 2019) 8.88. ibid 8.02. 20 ibid 8.27. 21 Rosemary Horgan, ‘Child Pornography and the Internet—Freedom of Expression Versus Protecting the Common Good’ (1999) IJFL 2(3), 7-9. 22 ibid. 23 Roberts (n 9). 24 Shirk (n 10). 25 ibid. 26 ibid. 18 19

140

Ireland, the European Union and the World monopolistic position over internet infrastructure. State owned companies own at least 51% of all nine (state licensed) Internet Access Providers. 27 A hint at regulation was made in the Ordinance for Security Protection of Computer Information Systems in 1994, demonstrating the strict approach that China planned to take when regulating this new forum. The first official internet regulation legislation was announced in 1996, the Interim Provisions Governing Management of Computer Information Networks. Four categories of information were initially prohibited from being produced or transmitted online. These are information that would harm national security, disclose state secrets, threaten social stability, or promote sexually suggestive material (art 13).28 These regulations were published in 1998 and swiftly followed by the Measures for Managing Internet Information Services (Measures, 2000). These regulations expanded the scope of the regulations published previously. 29 This excerpt from Article 15 of the 2000 Measures demonstrates the broad and vague nature of the regulations on internet speech in China, even in their conception: ISPs (internet service providers) shall not produce, reproduce, release, or disseminate information that contains any of the following: 1) Information that goes against the basic principles set in the Constitution; 2) Information that endangers national security, divulges state secrets, subverts the government, or undermines national unity; 3) Information that is detrimental to the honour and interests of the state ··· 6) Information that disseminates rumours, disturbs social order, or undermines social stability ··· or 9) Other information prohibited by the law or administrative regulations. Conclusion The very slow attempts at regulation by the Irish legislature throughout the late 1990’s, early 2000’s, are a stark comparison to the swift, sweeping approach taken by China simultaneously. After tracking the societal changes that had taken place within both countries throughout the 20th century it could be said that these changes impacted significantly both the government's ability and willingness to restrict freedom of expression on the internet.

Haiping Zheng, ’Regulating the Internet: China’s Law and Practice’ (2013) 4 (1) Beijing Law Review 2013, 37-41. 28 ibid. 29 ibid. 27

141

Ireland, the European Union and the World

VIRTUAL CURRENCIES: REGULATION AND RISKS Demetra Herdes

The legislative and judicial system has traditionally been slow to adapt to emerging technologies, leaving gaps through which innocent parties can be exploited. Although there are laws in place that impact the use of blockchain and cryptocurrencies, they are mostly unregulated and have been used with ill intent. In addition, most well-known cryptocurrencies were used and popularised by self-determined communities whose ethos has sometimes been ‘code is law’.1 This idea suggests that code regulates the behaviour of internet users.2 This article identifies legislation applicable to virtual currencies, its gaps, and provides examples of how courts have dealt with cryptocurrency scams. Regulation and Lack Thereof Much like the rest of the world, Ireland does not have any cryptocurrency-specific legislation.3 The financial legislation most likely to sketch the legal landscape is the Prospectus Directive, the European Union Markets in Financial Instruments Directive, the Alternative Investment Fund Managers Directive, and the Fifth Anti-Money Laundering Directive (5AMLD).4 5AMLD has been transposed into Irish law by the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021. This statute defines virtual assets as digital representations of value that can be digitally traded or transferred, and that can be used for payment or investment purposes. This definition expressly excludes digital

Robbie Morrison, Natasha CHL Mazey and Stephen C Wingreen ‘The DAO Controversy: The Case for a New Species of Corporate Governance?’ (2020) 3 Frontiers in Blockchain < https://www.frontiersin.org/article/10.3389/fbloc.2020.00025> Accessed 1 March 2022. 2 Primavera De Filippi, Samer Hassan ‘Blockchain technology as a regulatory technology: From code is law to law is code’ (2016) Volume 21 First Monday <https://doi.org/10.5210/fm.v21i12.7113> Accessed 1 March 2022. 3 A&L Goodbody, ‘Blockchain Ireland: The Legal 500 & The In-House Lawyer Comparative Legal Guide’ (December 2019) 3. 4 Maura McLaughlin, Pearse Ryan, Caroline Devlin and Declan McBride ‘Ireland’ in Michael S Sackheim and Nathan A Howell (eds), The Virtual Currency Regulation Review (3rd edn 2020) II. 1

142

Ireland, the European Union and the World representations of fiat currencies, securities or other financial assets.5 Through this amendment, persons offering services of exchange between virtual and fiat assets or between different forms of virtual assets, transfer services for virtual assets and custodial wallet providers, in other words, storage services,6 must apply customer due diligence, report suspicious transactions and implement procedures to prevent money laundering and terrorist financing.7 Cryptocurrency mining is an entirely unregulated activity. 8 By contrast, the Revenue Commissioners confirmed that ordinary taxation principles do apply to economic activities involving virtual currencies and produced a manual offering guidance on this. 9 Risk In 2017, the Central Bank of Ireland issued a warning regarding Initial Coin Offerings (ICO), pointing to their unregulated nature. This makes them more vulnerable to fraud than other financial instruments such as bonds or equities, and to the possibility that investors will be left without an exit option. As there are no regulations directing the disclosure of information related to cryptocurrency ventures or assets, consumers are always at risk of making under-informed investment decisions.10 The European Securities and Markets Authority also highlighted that inadequate information along with flaws in the technology behind crypto can lead to consumers being the victim of cyber-attacks.11 In criminal law, cryptocurrencies such as Bitcoin and Ether have often been connected to drug offences and the Darknet, however, fraud and theft are now the biggest cryptorelated crimes.12 Chainalysis reported that $7.7 billion worth of virtual currencies were

Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021, s4(c). ibid. 7 Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. 8 McLaughlin et al (n 4) VI. 9 Revenue, Tax and Duty Manual Part 02-01-03, ‘Taxation of cryptocurrency transactions’ <www.revenue.ie/en/tax-professionals/tdm/income-tax-capital-gains-tax-corporation-tax/part02/02-01-03.pdf>Accessed 13 March 2022. 10 Department of Finance, ‘Discussion PaperL Virtual Currencies and Blockchain Technology (March 2018) <https://assets.gov.ie/6284/070219124115a1199ab02f0c4a8ba5589a7f40985a63.pdf> accessed 1 March 2022. 11 European Securities and Markets Authority Statement (13 November 2017) https://www.esma.europa.eu/sites/default/files/library/esma50-157829_ico_statement_investors.pdf accessed 1 March 2022. 12 Chainalysis, Crypto Crime Report (February 2022) 79. 6

143

Ireland, the European Union and the World taken by scammers in 2021,13 and that crypto based crime rose by 79% from 2020. The rise was mostly driven by the growth of Decentralised Finance (DeFi)14, which aims to create a financial ecosystem operating through smart contracts, thus eliminating the need for middlemen such as banks or lawyers. However, this sector is still emerging, and with new software protocols come code vulnerabilities ready to be exploited by hackers.15 Additionally, some hackers claim, ‘code is law’. They may extend its meaning to suggest that each actor is responsible for the code it created and thus should suffer the consequences of leaving openings for hackers. Andean Medjedovic, a 19-year old math and coding prodigy, claimed this after he exploited a weakness in the code of Indexed Finance, a DeFi platform, stealing $16 million. The teenager refused to return any funds, so the platform took legal action against him. Andean missed his first court appearance in December of 2021, prompting the court to issue an arrest warrant. This may be the first time a court will rule on the ‘code is law’ principle. It has been emphasised that the phrase was originally used to argue that the internet’s software code was only similar to law, and should not be interpreted literally.16 Approach Likely to be Taken in Ireland The Central Bank of Ireland does not regard any cryptocurrency as legal tender, but as a speculative asset.17 This view, along with the definition provided by the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021, suggest that an Irish Court of Justice will regard cryptocurrency as property. Virtual currencies have also been treated as property in Irish criminal cases. In a set of High Court proceedings18, the Criminal Assets Bureau sought an order under section 3 of the Proceeds of Crime Act 1996, to prevent the respondent from disposing of Ether acquired in the course of drug dealings. In a set of earlier proceedings in the same case,

ibid 78. ibid 5. 15 ibid 5-6. 16 Jan Oster, ‘Code is code and law is law – the law of digitisation and the digitalization of law’ (2021) International Journal of Law and Information Technology 101. 17 Centra; Bank of Ireland, ‘Explainer - What are cryptocurrencies like bitcoin?’ <https://www.centralbank.ie/consumer-hub/explainers/what-are-cryptocurrencies-likebitcoin#:~:text=Explainer%20%2D%20What%20are%20cryptocurrencies%20like,currencies% 20that%20use%20physical%20cash> accessed 1 March 2022. 18 Criminal Assets Bureau v Neil Mannion [2018] IEHC 729. 14

144

Ireland, the European Union and the World such an order had been granted for Bitcoin, but was not been sought at all for the very same Ether, as this virtual currency was not trading at the time. The respondent claimed that the Criminal Assets Bureau were acting in an ad hoc and highly discretionary manner when reviewing his electronic equipment, specifically the wallet containing his Ether.19 While noting that the approach taken was less than ideal, Steward J asserted that it is ‘impossible’ for the State to prepare policies for every eventuality or act that could ever arise, as ‘there is no way to foresee every eventuality and plan for it’.20 The respondent also argued that seeking to obtain an interlocutory order on the Ether in this later set of proceedings is an abuse of process, against the rule that a party cannot raise a claim in subsequent litigation which should have properly been raised in previous proceedings.21 He argued that the Ether should have been dealt with in earlier proceedings, as it could be bought and sold at that time, even if it was not trading and even if it had a lower value. The High Court considered that the Ether had simply been overlooked in the first set of proceedings, as the commencement of its trading was not guaranteed, and may have well never happened. In granting the interlocutory order, the Court highlighted that the creation of virtual currencies was a giant economic and technological leap for society and that its effects are not yet fully grappled with, which made the oversight of the Bureau understandable in the eyes of the Court. 22 Regarding both the Bitcoin and Ethereum as property to be seized, the Court granted the section 3 order. The judgement suggests that in the absence of legislation that specifically deals with the intricacies of cryptocurrency23, the courts will enforce already existing laws, to prevent individuals from benefiting from their wrongdoings. Remedies Offered in Other Jurisdictions The view that virtual currency is property has been adopted in the UK,24 when a company fell victim to an Initial Coin Offering fraud. Its sole director was persuaded by persons unknown to transfer Bitcoin and invest in cryptocurrency products. The 19

ibid [18]. ibid [66]. 21 ibid [18]. 22 ibid [63]. 23 ibid [68]. 24 Ion Sciences v Persons Unknown and Others (unreported) 21 December 2020 (Commercial Court). 20

145

Ireland, the European Union and the World currency was traced through two cryptocurrency exchanges that held information about the owners of the accounts. The applicants sought a proprietary injunction, which the Court granted, making the case that Bitcoin is property under the common law definition. In granting this, along with a worldwide freezing order, the Court confirmed it is possible to grant injunctions against persons unknown, if they can be sufficiently differentiated from other users of the website. The freezing order was granted even though there was no evidence that assets could be caught by it. An ancillary disclosure order was granted against Binance Holdings Ltd, as there was a real possibility that the information they could provide would lead to the location of the applicant’s property, and that without this information, the identity of the respondents would have never been discovered. In November 2021, the largest ever recovery of cryptocurrency fraud proceeds was ordered at the request of the US Department of Justice and the US Attorney’s Office for the Southern District of California.25 The liquidation of $56 million worth of virtual currency resulted in the case of US v Glenn Arcaro26 the promoter of BitConnect. This instance was the largest cryptocurrency fraud ever criminally prosecuted. It resembled a Ponzi scheme, by convincing people to invest in cryptocurrency using their service, which would return incredibly high profits. The money was then used to pay back earlier investors, making it seem like the scheme was working. The U.S. Government took into custody the cryptocurrency, which will be sold, and the proceeds will be distributed to the victims. Conclusion Although legislative gaps exist, there are laws aiming to protect consumers from virtual currency scams. Because such currencies are likely to be seen as property, courts will strive to enforce existing criminal legislation, such as the Criminal Proceeds Act 1996 in cases of theft. Lastly, ‘it is not up for individuals […] to choose […] whether they intend to comply with regulation by law or with regulation by blockchain.’ 27 It is thus

The United States Department of Justice $54 Million in Seized Cryptocurrency Being Sold as First Step to Compensate Victims of BitConnect Fraud Scheme (November 16 2021) Press Release Number 21-1133 https://www.justice.gov/opa/pr/56-million-seized-cryptocurrencybeing-sold-first-step-compensate-victims-bitconnect-fraud Accessed 1 March 2022. 26 US v Glenn Arcaro; 21-CR-02542-TWR. 27Oster (n 16).

146

Ireland, the European Union and the World submitted that the ‘code is law’ principle would offend the rule of law, a fundamental notion underpinning legal systems in most liberal democracies.28

Raymond Byrne, J Paul McCutcheon, Laura Chaillane, Emma Roche-Cagney, Byrne and McCutcheon on the Irish Legal System (Seventh edn, Bloomsbury Professional 2020) [1.63].

147

Ireland, the European Union and the World THE POWERS OF THE PRESIDENT OF THE UN SECURITY COUNCIL: THE LESSONS WE CAN LEARN FROM IRELAND’S 2021 PRESIDENCY Alysia Cloake

Introduction The United Nations Security Council (UNSC) remains the most powerful organ of the UN and on the 1 September 2021, it was Ireland’s turn to lead it. During its presidency, Ireland oversaw the response of the UNSC on several issues such as the developing humanitarian crises in Yemen and Syria, and the safety of women and girls in Afghanistan. Despite the usual internal barriers, Ireland succeeded in facilitating the adoption of five resolutions.1 However, the presidency operates on a rotating basis and for only a month-long period, which arguably limits the impact a country can have during its presidency. Analysing the position of the President of the UNSC, as well as the achievements of Ireland’s September presidency, this article examines how powerful the president of the UNSC is and whether Ireland was successful in this role. The Presidency of the United Nations Security Council Under Chapter VII of the United Nations Charter, the UNSC has broad powers concerning the maintenance of international peace and security, where the resulting decisions of the Council are binding on the UN Member States. The UNSC exercises legislative, judicial and executive powers2, making it one of the most important organs of the UN. Rule 18 of the Provisional Rules of Procedure stipulates that each member of the UNSC will hold the presidency for the entirety of one calendar month. 3 The President of the Council will have several duties, including but not limited to representing the UNSC to other UN organs and leading the general meetings of the

Ross Fitzpatrick, ‘Ireland at the Helm: Assessing Ireland’s Presidency of the UN Security Council’ (2021) The Institute of International & European Affairs <https://www.iiea.com/images/uploads/resources/Ireland-at-the-Helm.pdf> accessed 3 March 2022. 2 Devon Whittle, ‘The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action’ (2015) 26(3) European Journal of International Law 671, 672. 3 UN Security Council Handbook; A User’s Guide to Practice and Procedure (2019) 28. 1

148

Ireland, the European Union and the World UNSC.4 During its presidency, the country holding the office is responsible for overseeing any developing crises and leading the Council in response to them. The power of the President is not without limitations. While the President may set the agenda of the Security Council and facilitate the success of resolutions in line with that agenda, they are still dependent on the votes of the other Council members. For a vote to pass it must reach the requisite nine affirmative votes5. Increasingly, however, the permanent five members of the Council, being China, France, Russia, the United Kingdom and the United States, have dominated the decision-making process. This is due in part to the veto power given to these members which in turn grants them a significant amount of influence over decisions of the Council. Therefore, the largest difference between the five permanent members and the other elected ten is concerns the voting structure which, by nature of the veto power, enables the permanent five to individually disallow a resolution6. The veto power is derived from Article 27 of the UN Charter and since its inception, this power has been met with considerable controversy. For example, China’s willingness to protect Sudan through the use of its veto during the 2010s was attributed to the country’s oil interests within Sudan. 7 These events showed the potential for a member of the permanent five to use its veto power for commercial gain.8 Ultimately, this veto has afforded the permanent five with a form of institutional power over the elected members. This dominance in decision-making processes is also increased by the advantages that come with the nature of permanency. Institutional memory, relationships, loyalty and general knowledge of the informal working methods of the Council has placed the five members in a superior position.9 While these five members may not always exercise their veto power, the threat of it may be enough to help shape resolutions in line with their desires. This is often referred to as an ‘informal veto’.10 An example of this was during the 2019 UNSC debate regarding a resolution on Women, Peace and Security,

ibid. Jess Gifkins, ‘Beyond the Veto: Roles in UN Security Council Decision-Making’ (2021) 27(1) Global Governance. 6 ibid. 7 Kenneth Anderson, ‘United Nations Collective Security and the United States Security Guarantee in an Age of Rising Multipolarity: The Security Council as the Talking Shop of the Nations’ (2009) 10(1) Chicago Journal of International Law 89. 8 ibid. 9 Gifkins (n 5). 10 ibid. 5

149

Ireland, the European Union and the World the US threatened to veto the draft resolution until the provisions on sexual and reproductive health for the survivors of sexual violence were removed.11 The resulting dominance of these five members limits the power of elected members when it comes to negotiations. O’Neill concludes that a fair approximation, as far as voting is concerned, is that the Security Council has five members.12 This has led many to question the legitimacy of those elected members and their basic power to lead during their term. The veto has prevented urgent action in extreme circumstances such as the response to the developing situation in Syria in February 2012, where a resolution authorising action was vetoed by Russia and China13. Many have considered this power to be a contradiction to the main principle of the UN, notably the ‘sovereign equality of all states’ as according to the Charter.14 Ireland’s Presidency of the United Nations Security Council 2021 Bearing in mind the challenges discussed in the first part of this article, how successful can we consider Ireland’s September presidency to be? The impact of the internal politics of the Security Council may have lessened Ireland’s power in this position, but considerable progress was made concerning areas such as UN peacekeeping and the emerging crisis in Afghanistan. Minister for Foreign Affairs and Defence, Simon Coveney chaired a Security Council briefing on the situation in Afghanistan which resulted in the adoption of a resolution that extended the mandate of the UN Mission in Afghanistan until March 2022. 15 This resolution would ensure the presence of the UN in the country for at least another six months and offer greater protection to those whose lives have been upturned by the reemergence of the Taliban. One of the key successes of Ireland was its leadership of the negotiations regarding a landmark UNSC resolution on Peacekeeping Transitions.16 Reached by a consensus of all the Security Council members, this resolution would 11

ibid. Barry O’Neill, ‘Power and Satisfaction in the United Nations Security Council’ (1996) 40(2) Journal of Conflict Resolution 235. 13 Shafa V Gasimova, ‘ The Security Council’s Endless Enlargement Debate’ (2012) 6(3) Central European Journal of International & Security Studies 269. 14 ibid, 276. 15 Ross Fitzpatrick, ‘Ireland at the Helm: Assessing Ireland’s Presidency of the UN Security Council’ (2021) The Institute of International & European Affairs: <https://www.iiea.com/images/uploads/resources/Ireland-at-the-Helm.pdf> accessed 3 March 2022. 16 ibid. 12

150

Ireland, the European Union and the World build on the vision statement of UN Secretary-General António Guterres, concerning the sustained protection of civilians during transitions of UN peacekeeping to peacebuilding missions. However, Ireland’s presidency, like many other countries, fell victim to the veto power of Russia and China. While Taoiseach Mícheál Martin expressed Ireland’s intention to convene discussions on a climate and security resolution, strong opposition from Russia, China and India posed a threat to the creation of the first-ever resolution of this nature.17 Despite widespread support for the creation of such a resolution, the ultimate power of Russia and China to veto any proposed draft prevented Ireland from succeeding in this area. Ultimately, while Ireland may have suffered some setbacks due to the power of the permanent five members of the UNSC, their time at the head of the table could and should still be considered a substantial success. In September Ireland oversaw the adoption of five UNSC resolutions, one presidential statement and four press statements.18 They briefed Council members on a range of issues: from climate and security to the rights of women and girls in Afghanistan. They attempted to heighten international responsibility for climate change and while they may have failed in bringing forth any such resolution, they did prove that despite being a small nation, they could stand up to those in a position of power and attempt to create meaningful change for those who remain vulnerable. Conclusion While Ireland’s presidency boasted some substantial success, the reaction of China and Russia to a Security and Climate resolution highlights a significant underlying problem of the UNSC; the power of the permanent five. The veto power of these five was one of the most divisive issues during the drafting of the UN Charter and its controversy 17

ibid. UNSC Res 2594 (9 September 2021) UN Doc S/RES/ 2594; UNSC Res 2595 (15 September 2021) UN Doc S/Res/ 2595; UNSC Res 2596 (17 September 2021) UN Doc S/Res/2596; UNSC Res 2597 (17 September 2021) UN Doc S/Res/2597; UNSC Res 2598 (29 September 2021) UN Doc S/Res/2598; UNSC Res 2599 (30 September 2021) UN Doc S/Res/2599; UNSC Presidential Statement 18 UN Doc S/PRST/2021/18; UNSC ‘Security Council Press Statement on Twentieth Anniversary of 11 September Terrorist Attacks’ (9 September 2021) Press Release SC/14626; UNSC ‘Security Council Press Statement on Situation in Somalia’ (18 September 2021) Press Release SC/14641; UNSC ‘Security Council Press Statement on Sudan’ (22 Septemebr 2021) Press Release SC/14643; UNSC ‘Secuirty Council Press Statement on Lebanon’ (27 September 2021) Press Release SC/14646. 18

151

Ireland, the European Union and the World continues into the present day.19 If the UNSC cannot exercise its main function to maintain international peace and security due to the use of a veto by one or more of its members, could the UNSC be considered to be in direct breach of the UN Charter? 20 On 23 February 2022, Secretary-General António Guterres in an address to an emergency meeting of the UNSC urged Russian President Vladimir Putin to stop his troops attacking Ukraine and to give ‘peace a chance’.21 However, these words would come too late, as the invasion of Ukraine by Russian forces would begin before the meeting had closed. The Presidency of the UNSC at the time of writing is in the hands of Russia, represented by Russian Ambassador Vasily Alekseevich Nebenzy. While resolutions may be proposed to authorise action against Russian forces, it is important to note that Russia still possesses the power to veto any such proposals. The invasion of Ukraine has highlighted significant concerns regarding the efficacy of the UNSC. Russia continues to possess a veto when it comes to all discussions of the Council, a veto that could block any authorisation of action in the region. This limits the position of the UNSC to act decisively and effectively in cases of humanitarian crises. As the war in Ukraine continues, the need to reform the UNSC becomes more urgent.

Philippa Webb, ‘Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria’ (2014) 19(3) Journal of Conflict and Security Law 471. 20 Gasimova (n 13). 21 ‘As Security Council meets on Ukraine crisis, Russia announces start of ‘special military’ operation’ (24 February 2022) < new.un.org > accessed 24 February 2022. 19

152