Thank You!

Thank you to our readers, subscribers, Twitter followers and Facebook fans. As of today, the blog has been viewed 5,000 times in the month of October. Do keep reading, and if you have any suggestions for future posts, feel free to leave them in the comments, message us on Twitter (www.twitter.com/humanrightsblog) or post to our Facebook Fan Page.

More on the JFS Case

The fantastic UK Supreme Court Blog has been following R(E) v JFS  closely.  I blogged about it here earlier in the week.  The UKSC blog provides some of the case documents here  and here and the Jewish Chronicle sketches the arguments made during the hearing. Pictured is the Chief Rabbi of the Commonwealth, Sir Jonathan Sacks. Media coverage of the case outlines some of its key implications for British education policy as it relates to religious membership:

• The Guardian notes tensions between Jewish bodies which champion the idea of ‘open religious schools’ and those who wish to limit admission to JFS to children with a specific ethnically-grounded religious heritage. Sholto Byrnes has an interesting article on the ‘soft’ issues at stake in the New Statesman.
• The Times highlights the crux of the case for the purposes of the Race Relations Act; the ambivalent position of religious groups which ‘test’ religious identity on the basis of descent as well as practice. The BBC observes that, on this basis, the decision in JFS will have implications, not only for the country’s 33 Jewish schools, but for its 7 Sikh schools.
• The Guardian runs articles – 1 and 2 – which highlight the dilemmas which arise from state funding of religious schools. The main positions articulated are of two kinds: either, as the NSS argues, the state ceases to fund religious schools at all, or the state in furtherance of certain visions of equality, directly prohibits certain admissions criteria for state-funded religious schools. In the aftermath of the Court of Appeal decision in JFS, many Jewish schools adopted ‘points based criteria’ for admission, as reported in the Guardian.

EU and Copenhagen

In a follow-up to my earlier post regarding the Oireachtas Joint Committee on Climate’s Change proposed Heads for a new Climate Change Bill it has emerged that the EU has agreed a joint negotiating position ahead of the Copenhagen Conference this December. The EU has sought to take the lead at the Conference and in settling on a joint platform it is hoped that the EU will be able to push others into agreement.

One of the main stumbling blocks has been on the question of how much financial support as well as  the degree of technology transfer that should be given to countries of the Global South. While some of these countries, such as China and India, are emerging as major polluters, others have little or no impact upon rates of climate change. However it is the countries of the Global South who will suffer most from droughts and floods should Climate Change keep going unabated.  The UN estimates that yields from rain-fed agriculture could fall by up to 50% in some African countries and that up to 200 million people could be displaced by the effects of climate change by 2050. Obviously the Global North is better placed to deal with these changes than the Global South both financially and with regard to technology. There has been extensive research into this sponsored by both the UN and NGOs.

The EU at today’s summit agreed a joint position on climate finance, though an actual formula for establishing a country’s ability to pay was not settled upon. They also agreed to cut emissions to 30% below 1990 levels by 2020.  Eastern European countries have been particularly concerned that any cuts in emissions will disproportionately affect their abilities to expand and develop their own economies, but with the intervention of Ban-ki Moon were convinced to agree a deal. While the agreed platform by the EU is more likely to lead to success at Copenhagen as Lavanya Rajamani has pointed out one of the greatest impediments to an agreement is the lack of trust in the Global North to fulfill its promises, the lack of success of the Kyoto Protocol is a prime example of this. It will be interesting to watch the various interests formulate their positions over the next month. What is clear is that comprehensive action must be taken soon.

Bacik on the Commissions of Investigation Act 2004

The Irish Times also reports that the High Court will give its final ruling next week on exactly how much may be published of the report of the investigation into the handling by Catholic Church and State authorities of child sex abuse allegations against clerics in the Dublin archdiocese.  Padraig has blogged about the case here. Labour Senator and Reid Professor of Criminal Law, Criminology and Penology at Trinity College Dublin, Ivana Bacik has released a statement in which she calls for an an urgent debate on the operation of section 38 of the Commissions of Investigation Act 2004. Senator Bacik writes:

“The Minister has sought directions from the High Court under section 38 of the Act. The High Court has already ordered the deletion of one chapter of the report, and further directions are now being sought from the Court. I am very concerned about the lack of fairness in the procedures under section 38. The hearing is in private, with no media present. The only persons represented are the State authorities – in this case, themselves under investigation – and any defendants in relevant criminal proceedings, ie alleged abusers… Section 38 does not give any right to be heard, for example, to the survivors or victims of abuse, or the Commission itself. Yet the effect of the section could be to compromise the reports of commissions of investigation, by ensuring that they are neutered before they are published. There is a clear public interest in reviewing the operation of section 38, to ensure greater rights to representation and greater transparency in the process.”

Conference: Global and Local Human Rights Perspectives on Abortion

The Irish Centre for Human Rights at NUIG and the Irish Family Planning Association will host a conference on abortion and human rights on Thursday, November 5. Details are here.

More on Protestant Schools

 The Irish Times reports that Martin Mansergh (left), the Minister of State for the Office of Public Works has suggested that a resolution can be found to the problem of funding Protestant schools as part of next year’s budget. We have discussed the debacle here. Minister Mansergh did not promise that the ancillary grant would be restored to all Protestant schools. Rather he outlined that the government wished to tailor its funding arrangements to those schools most in need; it “was willing to consider any proposals that would more effectively focus funding to meet the objectives of improving access and sustaining Protestant schools, particularly those in rural areas.”  The Minister said:

“I was a member of the board of a Protestant secondary school in Dublin city for almost 20 years. Shortly before departing last year, I inquired about the number of block grant pupils [those who benefit from special funding from the State] among the school population of 630 and was told it was in single figures… However, in other areas… the proportion may be 30 per cent or 40 per cent and, in one or two instances, even higher. The case can be made that the cutbacks announced last October bear more heavily on such schools than on those with no substantial disadvantaged intake.”

Civil Partnership Bill 2009…Countdown to the Debate

Via Maman Poulet comes news that concerted lobbying is now commencing around the Civil Partnership Bill 2009, which the renewed Programme for Government commits to introducing and is due to be debated before Christmas. The Civil Partnership Bill 2009 will, when passed, introduce civil partnerships available to same-sex couples only and provide some (primarily property-based) protections for unmarried and un-civilly-partnered couples on the breakdown of their relationship. In addition, s. 5 of the Bill provides that the Minister for Justice may, by order, recognise a relationship from another jurisdiction as a civil partnership in Ireland is he is satisfied that the extra-jurisdictional relationship form has equivalent characteristics to a civil partnership. Foreign marriages between same-sex couples, where they exist, will therefore not be recognised as marriages which, to me at least, means that the Bill does not address the net point in the Zappone & Gilligan v Revenue Commissioners case (for recognition of a Canadian same-sex marriage).

Civil partnerships will not be the same as marriage and marriage will in fact remain the exclusive domain of opposite-sex couples. That said, there are a variety of situations in which the Bill when enacted will provide significant protections to civil partners in areas around taxation, ‘shared’ home, pensions and so on. What is notably absent from the Bill, however, is any provision relating to children. Civil partners will not be permitted to adopt as a couple. Neither will the non-biological parent of a child being parented by both civil partners be able to carry out a second-parent adoption or to have recognised legal connections to the child. Children do become relevant on the dissolution of a civil partnership as their needs can be taken into account in relation to, for example, property adjustment orders and so on.

A number of points needs to be made here from a human rights perspective:

1. Civil partnerships are unlikely to answer equality concerns from the LGBT community as they are not equal in status (constitutional, legal and social) to marriage
2. Civil partners will not have the same range of protections as married couples in all circumstances, although there will be in most circumstances
3. The rights of children to meaningful, legally-recognised and protected relationships to the people who parent them are not promoted by this Bill
4. The exclusion of opposite-sex couples from civil partnership discriminates against couples who want legal protections but who do not want to marry for ideological or other reasons

There are whispers that the Bill will be debated on November 2^nd, but it does not appear on the Order Paper. However, the debates ought to commence relatively soon and we will follow and reflect on them here on HRinI. While there are plenty of difficulties with civil partnerships as proposed in terms of scope, substance and basic equality principles we must recognise that civil partnerships themselves do represent an important advancement for LGBT rights in Ireland and should be welcomed as a step in the right direction but certainly not the final destination.

On October 19^th I spoke about civil partnerships in the UCC Philosoph in a debate co-sponsored by the UCC LGBT Soc. You can hear my speech here, although as the motion was worded (by the Society) as ‘This House would Reject Civil Partnerships in Favour of Civil Marriage’ my support for partnerships as a protective paradigm that can be used by vulnerable couples now does not perhaps come through as clearly as it would have done if the motion were differently worded.

 

The Language of Exclusion

What to think of this story from today’s Irish Examiner, headlined ‘Judge: Roma raising kids to steal’? Colin has already blogged on the situation of Roma in the North. This story from the Republic turns on statements by two judges of the District Court; Judge Aingeal Ní Chonduin and Judge William Early about the case of a 16-year-old Roma girl. The girl had admitted theft of €320 worth of children’s shoes at Liffey Valley Shopping Centre, in Dublin, on June 11 last, possessing stolen underwear, taken from a shop in Dublin city centre, on a date last July and failing to attend her court case on another date. Her solicitor told the court that the girl had been brought to Ireland at the age of 13 by her partner, now aged 21, and his family. At age 15, she gave birth to their first child. The Health Service Executive had conducted a welfare assessment but had not deemed any action to be necessary.

Now to the judges’ statements. Yesterday, Judge Aingeal Ní Chonduin, passing sentence said: “That seems to be the culture, the family owns her that is the way the families function, unfortunately, to go about to steal…,” she said. “It is a different culture, it does not go with our ways and our shops are being robbed blind, I feel sorry for these children.” At an earlier stage in the case, Judge William Early  had expressed concern about the age gap between the girl and her partner. He  had said: “It seems we have a 15-year-old child who appears to be living with a 20-year-old gentleman…This is statutory rape if that man is responsible for the conception of the child.” The DPP had not recommended prosecution. In response, Judge Early remarked “Either there are two different laws for people in this country or there are not. If people are to be treated equally before the law they should be treated equally and there should be similar expectations of people…“I understand that some cultures are impenetrable to a certain extent but they should be treated equally before the law.”

This morning Rajan Zed,  president of the Universal Society of Hinduism and an advocate for Roma rights, asked for Judge Ní Chonduin’s resignation. I want to wait for further media and government reaction (if it comes) for a full post. But for now,  two observations will do.

• Both judges suggest that crime – theft and statutory rape – characterise the Roma by reason of ‘culture’. This is what Etienne Balibar would call ‘neo-racism’, a racism which does not identify itself as such but which distinguishes between in and out groups on the basis of notionally ‘impenetrable’ culture rather than ethnic origin. It depends for its effect on the sort of denial inherent in Judge Ni Chonduin’s rhetoric – in setting up a ‘billiard ball’ model of culture; untouched by other social forces.
• The gendered aspect of this racism is evident in the interrogation of the girl’s sexuality, relationships and motherhood. This move recalls the Citizenship Referendum of 2004, which focused on the supposedly deviant motherhood of migrant women and their consequent unfitness to ‘belong’ in Ireland. Siobhan Mullally, Ronit Lentin and – outside the Irish context – Nira Yuval Davis have written about this. The portrayal of Roma as inadequate parents, raising their children for crime, illicitly taking from a vulnerable Irish public, echoes the ‘Roundabout Roma’ controversy of 2007.

Update: Responses from the Immigrant Council of Ireland and Pavee Point are reported here.

Ní Chonduin

The Exclusionary Rule soon to be before the Supreme Court

The case of DPP v Cash is listed for hearing in the Supreme Court on Monday November 16^th 2009. This case may have major implications for the criminal justice process, policing in Ireland and the protection of suspect rights. The case is likely to allow for an exploration of the Irish exclusionary rule in relation to improperly obtained evidence. This rule, first established in People (AG) v O’Brien [1965] I.R. 142 and later modified in People (DPP) v Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569, has come in for much criticism in recent times and many see the Cash case as the perfect opportunity for the Supreme Court to address the strict manner in which the rule operates in the context of unconstitutionally obtained evidence.

In O’Brien, a dichotomy was established between evidence obtained in breach of legal rights only and evidence obtained in breach of constitutional rights. In relation to the former, a trial judge holds a discretion to admit or exclude the evidence based on an assessment of the totality of the circumstances, including the nature and extent of the illegality, whether it was based on an ad hoc decision or settled policy, whether it was intentional or unintentional and whether the public interest would be best served by the admission or the exclusion of the relevant evidence.

However, the trial judge has no discretion in relation to the exclusion of unconstitutionally obtained evidence. Once it is shown that there has been a breach of constitutional rights, and there is a causal link between such breach and the impugned evidence, the evidence becomes automatically inadmissible. The only circumstances in which unconstitutionally obtained evidence might be admitted is where there are so-called “extraordinary excusing circumstances” in place which justify its admission, such as the need to rescue a victim in peril or to prevent the imminent destruction of vital evidence.

Ian Brady and the Right to Die

I watched a very interesting docu-drama on BBC Alba last night on Ian Brady and the right to die (entitled, predictably enough, Ian Brady – The Right to Die), which has created a minor furore in Scotland about an issue which has largely been forgotten.  

 The Moors murders carried out by Ian Brady and Myra Hindley between July 1963 and October 1965, in and around the Greater Manchester area have, perhaps more than any other murders, passed into the popular consciousness of Britain and Ireland. The victims were five children aged between 10 and 17, at least four of whom were sexually assaulted. The murders are so named because two of the victims were discovered in graves dug on Saddleworth Moor; a third grave was discovered on the moor in 1987, over 20 years after Brady and Hindley’s trial in 1966.