Reform of the One Parent Family Allowance?

The front page of this morning’s Irish Times carries this story reporting the Minister for Social Welfare Mary Hanafin’s (left) view that some reform of the one parent family allowance may be required. In the Minister’s view “The idea of continuing to pay somebody until their child is 22 if they’re in full-time education, it just mitigates against that lone parent herself having a stable relationship or marrying or even taking a full-time job, because of the attachment to ‘the book’”. The article reports that the Minister is considering discussing a situation where one parent family allowance would cease around the time that a child went to secondary school and that she seeks a ‘social policy’, rather than economic, discussion around this welfare allowance. It should be noted, first of all, that changes along these lines were proposed in the Government Discussion Paper: Proposals for Supporting Lone Parents (2006) and are therefore not new. In addition, the discussion is prompted by an awareness that lone parents are reportedly four times more likely to live in poverty and a desire to try to improve state-based supports for lone parent families.

Originally lone parents were supported through the poor law and such support was, in fact, reflective of a very punitive and moralistic approach to single parents (and single mothers in particular). Lone fathers were not originally entitled to any lone parent support from the state; a situation that was upheld by the Supreme Court in Lowth v Minister for Social Welfare [1998] 3 IR 321 on the basis of ‘social function’.

Part III of the Social Welfare Act 1990 introduced a means tested, non-gender-specific lone parent’s allowance payable to those with at least one qualifying child. Part V of the Social Welfare Act 1996 then introduced the one parent family payment to replace the lone parent’s allowance, deserted wife’s benefit and deserted wife’s allowance. This gender neutral, means tested payment is intended to support those who are bringing up a child without the support of a partner and without access to income from other sources. Qualifying children are children up to the age of 18 or, when in full-time education, up the age of 22 where the recipient is the main carer of the child. Rather controversially, qualification for the one parent family allowance is dependent on one complying with the “non-cohabitation” rule, i.e. a rule that prohibits the payment of OPF allowance to anyone who resides with another adult “as husband and wife” regardless of whether the other cohabiting adult in fact parents or supports the child to any extent.

China Executes Mentally Ill Man

China has been roundly criticised for executing Akmal Shaikh, a 53 year old British national with a proven mental illness, at 2.30am GMT this morning.

Mr. Shaikh was convicted of smuggling 4kg of heroin into China in September 2007. It is understood that he believed that he was travelling to China to record a hit single that would usher in world peace and was duped into carrying a suitcase packed with heroin by his “producer” (who was working for a criminal gang) on a flight from Tajikistan to the remote city of Urumqi in Northern China. Mr Shaikh had no experience of singing in public. Mr. Shaikh’s brother, Akbar Shaikh, stated that during his thirty minute trial his brother insisted on holding his own defence and was adamant that neither he nor his family had a history of mental illness. Witnesses say that his testimony was at times “so absurd” that even the judges were laughing.

On This Day

These are special days in the history of Irish constitutional rights. On December 29, 1937 the Irish Constitution came into force, having been passed by a national plebiscite in July. The picture shows Eamon De Valera, architect of the new Constitution and then President of the Executive Council, standing with members of his cabinet at Government Buildings during the inauguration of the new Constitution. On December 28, 1960, the Oireachtas passed the Health (Fluoridation of Water Supplies) Act, 1960, which required local authorities to fluoridate public water supplies to reduce childhood tooth decay. Mrs. Gladys Ryan had a strong objection to the the fluoridation scheme and challenged the constitutionality of the 1960 Act. Her case; Ryan v AG [1965] IR 294, marks the origin of the doctrine of unenumerated rights in Irish constitutional law.

If you feel like celebrating these milestones, why not raise a glass of fizzy pop to the five young Ryans, whose parents – the case report tells us – ‘did not encourage their children to eat sweets, lollipops or ice cream, and [only permitted them] soft drinks… on Christmas Day.’

Christmas Season Developments in Irish Human Rights

We may be out of term but the backlog of holiday-time Irish human rights stories is growing. Here are some of the most important stories in Irish human rights which have broken over the past week or so. We will blog some of these in more detail when term begins again. If we have missed out on anything important, please let us know in the comments.

• The Inspectorate of Mental Health Services has published its annual Approved Centres Inspection Reports. The Irish Times reports here.
• In December, a number of NGO’s launched the Children’s Mental Health Coalition.
• 71% of the State’s judges have paid the public sector pension levy to date. We blogged the issue here.
• The Taoiseach is under pressure to extend the institutional redress scheme to former inmates of the Magdalene Laundries. We have blogged the issue here.
• The Minister for Education may reconsider his stance on funding of Protestant secondary schools. We covered that issue here.
• The Irish Times reports on a High Court challenge to the ‘Romeo and Juliet’ provisions of the Criminal Law (Sexual Offences) Act 2006.
• Donal O’Donnell SC has been nominated to the Supreme Court. We discussed the possibilities here.
• The Minister for Health will propose much-needed legislation to govern Assisted Human Reproduction in 2010. The issues at stake were highlighted by the recent Supreme Court decisions in Roche and McD v L.
• We can also expect a referendum on children’s rights in the new year. The Children’s Rights Alliance has a response and a briefing note on its website.
• The Final Report of the National Commission on Restorative Justice has been published and is available here. The Irish Times provides some analysis of its content here.
• The Minister for Integration has submitted Ireland’s combined Third and Fourth Periodic Report to UNCERD.
• The Northern Ireland Affairs Committee of the House of Commons has published its Second Report of Session 2009-10 on The Report of the  Consultative Group on the Past in Northern Ireland. The Irish Times highlights the implications of the Report for transitional justice in Northern Ireland here.
• The Law Reform Commission has published three important consultation papers on medical treatment for young people, on documentary and computer evidence in civil and criminal trials and on search warrants and bench warrants.

The Oireachtas and Human Rights Treaties

As we head into 2010 it is worth taking stock of the status of international treaties in Ireland in general and the current status of numerous international human rights treaties in particular. Article 29.6 of the Irish Constitution marks Ireland clearly as a dualist jurisdiction when it comes to international law, providing:

No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

As a result, for international treaties to become binding in domestic law they must be expressly incorporated by means of legislation, giving the Oireachtas an important role in relation to human rights treaties. Of course, once Ireland has ratified those treaties they are binding in international law; simply not in domestic law. This, of course, is the basic (and admittedly very simplified) principle of dualism: that there are two sphere of legal operation—the domestic and international—and that what a state becomes bound by in the international sphere overlaps with the domestic sphere only inasmuch as it is either expressly incorporated or forms part of the general principles of international law (a.k.a. customary international law).

In the context of human rights law, the fact that Ireland has signed a treaty but not incorporated it into domestic law does not necessarily mean that it is of no recourse to the individual who wishes to avail of the rights and protections within it. There are a number of ways in which unincorporated treaties can be useful in domestic litigation, including as interpretive aids or persuasive precedents. In addition, many human rights treaties have individual complaints mechanism that operate in international adjudicatory bodies like the European Court of Human Rights, the UN Human Rights Committee etc… Once someone has exhausted all domestic remedies (or established that there is no reasonable prospect of success in domestic law) they might avail of those adjudicatory mechanisms as a method of dispute resolution. Importantly, however, and as the case of Kavanagh v Governors of Mountjoy Prison demonstrated with some force, the decisions of those international bodies are not binding on the domestic courts. Thus, one might get a favourable decision in an international treaty body but if one returns to a domestic court the finding of that international body is merely persuasive authority in the absence of an incorporating act for the treaty in question.

The Holiday Season at HRinI

As we move into the holiday season we here at Human Rights in Ireland would like to thank all of our readers, guest contributors and commentators for partaking in the blog. Since our founding on 31 August 2009 we have welcomed over 30,000 readers to the blog as well as the hundreds of people who read us through various blog readers. We also have many followers on Twitter and on our Facebook fan page.

For the next week or so the blog is likely to be very quiet, not only because most of us will be enjoying the holiday season with our families and loved ones but also because a number of us have substantial examination correction obligations over the next few weeks. However, normal service will resume in the new year.

In the meantime, all of us here at HRinI thank you for your support and readership and wish you all a peaceful holiday season.

Guest Post: Nic Suibhne on the Adoption Bill 2009

We are delighted to welcome this guest post from Brid Nic Suibhne on the Adoption Bill 2009. Brid is a researcher at the Law Reform Commission but this post is contributed in a personal capacity.

Adoption legislation in Ireland has been referred to an “incomprehensible jigsaw” encompassing seven pieces of legislation.[1] In 2003 the government announced a review of adoption law, to take account of the social and economic changes which had occurred since the principal act of 1952. Following an open consultation, the Adoption Bill was published in January 2009 and is moving through the various stages of the legislative process.[2] This recent attempt to clarify the law, by incorporating the previous adoption acts into one piece of legislation is much welcomed[3].

In relation to both domestic and intercountry adoption, section 19 of the Bill states that in any matter, application or proceeding before the Adoption Authority or any court, the welfare of the child is regarded as the first and paramount consideration. It is imperative that the child is at the centre of the adoption process and the emphasis is on providing a child with a suitable family, rather than providing a family with a child.

Lithuanian Enquiry into CIA Secret Prisons

A parliamentary enquiry in Lithuania has concluded that the CIA ran two secret prisons in that jurisdiction to which various suspected terrorists were ‘extraordinarily rendered’ in the aftermath of the 11 September 2001 attacks. According to the Irish Times news report the enquiry has found that the detention centres were opened and operated in conjunction with the Lithuanian intelligence agencies and that there was no domestic political approval of them. This adds Lithuania to Poland and Romania as European jurisdictions in which such prisons operated.

This is worrying in a number of respects. First of all there is, of course, the concern that a European jurisdiction allowed for the operation of these ‘ghost prisons’. These prisons were clearly intended to circumvent US and international law. Furthermore, they were designed and operated in a manner that attempted to ensure that the domestic law of the relevant state could not be availed of by detainees in any attempt to secure their liberty. The idea of designing a detention centre that would operate outside of the law is almost certainly to ensure that intelligence officers can use whatever mechanisms they deem appropriate or necessary in order to acquire ‘intelligence’ about the detainees’ alleged activities without the spectre of legal accountability for such actions. It seems unlikely that thoughts at that time were directed towards acquiring evidence that could be used in a court of law—there would, after all, be clear questions of admissibility if sustainable claims could be made that information was acquired in an unconstitutional manner. Rather, the information to be gathered was clearly ‘intelligence’—i.e. designed to be used in counter-terrorism design and operations as opposed to in any prosecutorial process.

Conway and Mulqueen on Gangland

HrinI blogger Vicky Conway and Michael Mulqueen of UL have recently published “The 2009 Anti-Gangland Package: Ireland’s New Security Blanket?” in the Irish Criminal Law Journal. The introduction to the article gives a flavour of the insightful analysis it offers:

Between January 2009 and the Dáil summer recess, the Irish government introduced six Bills in response to the problem of organised crime, which had already been linked, in media coverage, to the deaths of 15 people that year. In the previous decade multiple Acts and Amendment Acts had attempted to address the problem which, in political and media discourse, appeared to grow since the killings of Veronica Guerin and Det. Garda Gerry McCabe in the summer of 1996. With each year, the government introduced wider powers and tougher laws. The 2009 package of legislative measures represents a significant leap forward in this trend, not least through its scheduling of organised crime offences; this creates a legal requirement for the use of the non-jury Special Criminal Court in any such trials, an unprecedented step for non-paramilitary activity. Many experts and legal practitioners have predicted that at least two of the laws that comprise the package will be challenged in Irish and possibly European courts. In this article we examine the context for the introduction of the 2009 laws and difficulties which emerge from them, both in terms of the rights they potentially breach and their likelihood of success. Of particular concern to us is how the package of measures represents an underlying shift towards viewing gangland crime as a problem of national security – a shift which risks creating a myriad of further problems. Our conclusion is that not only will the package not succeed in reducing gangland crime, by moving the State further into the realm of emergency law, the package places Ireland on a very dangerous precipice for any democratic state committed to human rights.

The ICLJ is available to read on Westlaw IE for those with a subscription.

Mass cards challenge fails

The High Court dismissed yesterday a challenge to s. 99 of the Charities Act 2009, which creates an offence of selling a Mass card “other than pursuant to an arrangement with a recognised person.” A “recognised person” is defined as a bishop, or a provincial of an order of priests recognised by the “Holy Catholic Apostolic and Roman Church.” The provision, giving legal effect to certain discriminations pertaining to clerical status within a particular church, and confining the sale of a religious product  to those authorised by certain authorities within that church, was challenged by a Longford retailer. While the written judgment is not yet available, early media reports have suggested that the ruling turned partly on the fact that the there was no evidence that the sale of pre-signed Mass cards constituted the profession or practice of his religion. More interestingly, McMenamin J. has apparently suggested that the State may justifiably lend its weight to a discrimination of status deriving from within Roman Catholicism. It is unclear, as of yet, whether the Court has dismissed the claim on the basis that the plaintiff, as a retailer, cannot rely on the rights of a hypothetical third party which might be engaged in the practice of religion in issuing an “unauthorised” mass card, or whether it does not believe that the rights of such a party would, in any case, be violated by the state’s buttressing of the internal rules of the church. More detailed analysis will follow once the judgment becomes available.