The Pension Levy and Judges in the Republic

Prof. David Gwynn Morgan of University College Cork- who taught many of the contributors to this blog our constitutional law -was interviewed on yesterday’s Morning Ireland and spoke  about the judicial pension levy. The judiciary are exempt from the public sector pension levy introduced this year. They were exempted on foot of advice given by the Attorney General to the effect that including them in the scheme would be unconstitutional. Article 35 of  the Constitution, in a provision designed to safeguard the independence of the judiciary, provides that a judge’s remuneration shall not be reduced during his term of office.  Many, Prof. Gwynn Morgan included, argue that the constitution therefore prohibits the ‘singling out’ of judges, whether individually or as a group, for punitive revenue measures.  The key case is O’Byrne v. Minister for Finance (1951) IR 1,  in which Chief Justice Maguire held thatArticle 35.5 did not require the exemption of judges from income tax schemes applying to the whole population. Prof. Gwynn Morgan argued yesterday that it was difficult to meaningfully distinguish between a general income tax and a pension levy affecting one third of Irish workers. However, the Attorney General favoured a firmly ‘hands off’ approach. The Taoiseach, explaining the exemption said: “We need to recognise the constitutional position and not say or do or indicate anything that would in any way interfere with the independence in the role and functions of those important public servants in the judiciary who serve us so well.”

Schabas & Pech on Human Rights in the Lisbon Treaty

Our colleagues William Schabas (ICHR) and Laurent Pech (NUI Galway) today post on human rights and the Lisbon Treaty on Schabas’ excellent PhD Studies in Human Rights Blog. There follows a taste from this tight and forcefully argued post, but it is well worth reading in full:

All Bills of Rights use broad language, and the EU Charter of Fundamental Rights is no exception. It is in their nature. This is a valuable feature, because it enables them to be interpreted in an increasingly expansive manner over time, as attitudes and values evolve. Strangely, the broad language has been used by critics of the Lisbon treaty to concoct scenarios and interpretations that have more to do with fantasy than reality.
The Lisbon Treaty makes clear that the provisions of the Charter shall not extend in any way the powers of the EU as defined in the relevant treaties. The fact that certain Charter rights concern areas in which the EU has little or no competence (for example, the death penalty or the right to strike) to act is no contradiction. Although the powers of the EU are limited, it must avoid even indirect interference with all fundamental rights.
Fundamental rights guaranteed by national constitutions are merely complemented, not superseded by the Charter. The Charter will certainly apply to EU institutions. But it only applies to the Member States when they implement EU law. This is not reflective of some sinister centralist agenda but rather a salutary commitment from Brussels to respect fundamental rights in all aspects of its activities. How can this possibly be harmful? It strengthens our protections and fundamental guarantees.

Goldstone Report on Gaza War Crimes Presented to the Human Rights Council

Yesterday, international jurist Richard Goldstone presented a report to the Human Rights Council on breaches of international humanitarian law in the Gaza conflict which had found strong evidence of  violations during Israel’s military assault that lasted from December 2008 to January 2009, and claimed more than 1400 lives. The report concluded that Israel and Hamas were responsible for numerous serious violations of the laws of war, some amounting to war crimes, and called on both parties to conduct impartial investigations to determine who was responsible for ordering or carrying out these violations within six months. The 47-member Council council has already condemned Israel in a statement last January and is expected to take a hard line this week.  It is further expected that the report will be forwarded to the UN Security Council with a recommendation that war crimes trials be considered.

Call for Papers: Regulatory Governance (ECPR)

Please find below a Call for Papers for the Biennial Conference of the ECPR Standing Group on Regulatory Governance. Readers will note that a stream in rights and regulation is suggested. Issues relating to human rights can, of course, also arise in the other streams. In my view the theme on the causes and responses to crises seems to offer a particularly rich opportunity here.

The fields of rights and regulation have been too separate for too long (although this special issue of Law and Policy co-edited by my colleague Prof Colin Scott goes some way to trying to remedy that situation) and this conference, which will be held in UCD, offers an opportunity for Irish scholars and those based here to get to the heart of unifying these disciplines or at least theorising whether such unification is possible. The call for papers follows after the jump.

Integration and the Demise of the Celtic Tiger

The Immigrant Council of Ireland yesterday urged that Ireland should remain committed to the project of migrant integration in spite of the economic downturn. The ICI’s founder, Sr. Stanislaus Kennedy, said on Monday that:

“Despite newly released Central Statistics Officer (CSO) figures showing Ireland has, sadly, once again become a country of net emigration, it would be very misguided to think this means we no longer need to care about social inclusion…Our communities have changed forever and we are now a diverse society.  That will not change.  We must ensure that we continue to remove barriers to social inclusion so that no group or individual must overcome unnecessary hurdles to achieve their potential.  That includes language barriers, educational barriers, recognition of qualifications, employment barriers and attitudinal barriers that lead to exclusion and racism.”

On Wednesday, the Irish Times reported that, for the first time since 1995, more people were leaving Ireland than were coming here. However, the Times adds, significant numbers of immigrants continue to arrive: some 57,000 immigrants came to Ireland in the year to April and the outflow of migrants leaving Ireland has not been as large as expected. These facts trouble the assumption that public expenditure in the area of migrant integration (the McCarthy Report recommended reductions in language support teachers and the abolition of the Ministry for Integration) should be cut. The ICI has also criticised the anti-immigration rhetoric which has been a feature of the Lisbon referendum campaign, with its chairman John Cunningham forcefully arguing that ‘this recession must not be used as a ‘wedge’ to divide those who are perceived as ‘us’ and ‘them’.

Developments on the Magdalen Laundries Front

The campaign for redress and reparations for residents of the Magadalen laundies appears to be gathering momentum. Sunday saw former residents of Magdalen Laundries and their supporters hold a march, calling for compensation from the Government and religious institutions for the abuse they suffered.

Todays Irish Times reports that Minister for Education Batt O’Keeffe has apologised for using the word “employees” to describe women who had been resident in Magdalen laundries throughout Ireland up to the mid-1990s.

In a letter to Dublin South TD Tom Kitt he expressed deep regret for “any offence caused by my use of the term ‘employees’ when referring to these women”. He added: “I fully acknowledge that the word ‘workers’ would have been more appropriate.”

Leaving aside the question of whether ‘workers’ is, in fact, an appropriate term for the residents of the laundries, the Minister has not, apparently changed his views expressed in his previous letter to TD Kitt. These include the assertion that the former residents of the laundries were not eligible for compensation from the Residential Institutions Redress Board as the “[t]he Magdalen laundries were privately-owned and operated establishments which did not come within the responsibility of the State.” Nor did he refute his previous comment that “[t]he State did not refer individuals to the Magdalen laundries nor was it complicit in referring individuals to them.”

Enright on Forced and Arranged Marriage

HRinI blogger Máiréad Enright (left) features today as a guest blogger on the excellent IntLawGrrls. In her guest post, Máiréad reflects on the phenomenon of forced and arranged marriage in the UK and the ways in which the UK law tries to counter-act these phenomena. Her guest post is substantively based on her recent article entitled “Choice, Culture and the Politics of Belonging: The Emerging Law of Forced and Arranged Marriage”, which was published in (2009) 72 Modern Law Review 331. Here is a taste of Máiréad’s post on IntLawGrrls, which can be read in full here:

The majority of reported victims of forced marriage in the United Kingdom are young women of South Asian Muslim origin. Because of this fact, the forced marriage project must be read critically against the background of a wider politics of British Muslim belonging, which is linked to the counter-terrorism and social cohesion agendas. This politics operates to exclude some British Muslims from full membership in the ‘we group’ of British citizens. The ground for exclusion is that of ‘excessive’ or ‘difficult’ culture. Those British Muslim who are presented as most bound up in cultural practice, I argue, have become the British citizen’s ‘other’, and are subject to law’s discipline on that basis.

Former Guantánamo Bay Detainees Granted Leave to Remain

The Irish Times reports today that two Uzbek nationals who had been detained in Guantánamo Bay for seven years but who were found not to be a threat to national or international security have now arrived in Ireland. The former detainees could not be returned to their own countries of origin as there was a real risk that they would be subjected to persecution there. The former detainees have been granted leave to remain by the Minister for Justice, Dermot Ahern (right).

As a legal status, leave to remain is normally granted where someone has been unsuccessful in an asylum application but there are humanitarian reasons for not returning the person to their country of origin. This is provided for under s. 17 of the Refugee Act 1996. However, leave to remain can be granted in broader circumstances than this as it is a discretionary status. Recently a large number of people have been granted leave to remain on the basis of their being the parents of Irish born children, for example.

Private Companies and Extraordinary Rendition

I had the great pleasure last Friday to present a paper as part of the Scrymgeour Seminar Series in Dundee Law School. My lecture, entitled “Privatised Torture: Reflections on the Implications for Human Rights Law of the Emergent Phenomenon of Out-Sourced Torture”, has now been posted as part of the UCD Working Paper Series on Law, Criminology and Socio-Legal Studies on SSRN and is available for download here.

Fazaeli on Women Martyrs in Iran

Roja Fazaeli of TCD recently presented a paper entitled “Humiliated Men and Martyred Women: the War on Terror’s Implication on Redefining Middle-Eastern Masculinities” at the Feminism and Legal Theory Project in Emory Law School, Atlanta. Although there is no paper available online, Emory has fully embraced YouTube and you can view Roja’s presentation, as well as those of other participants in the conference entitled “Masculinities and the Law” online.