On Monday, the Irish Times reported on a new operation which has been undertaken by the Garda National Immigration Bureau (GNIB) to detect and prevent what they believe to be marriages of convenience for the purpose of securing EU residency rights. A Pakistani man, Muhammad Shafi, was recently convicted of offences related to the possession of ‘false instruments’. Gardai also intervened to halt his marriage to a Lithuanian woman. The Irish Times reports that marriages designed to circumvent certain legal obstacles to residency in Ireland are an important informal feature of our immigration regime, with the Minister for Justice estimating that “30 per cent of all our applications for recognition under the EU directive on freedom of movement and residency involve persons who were illegally present in Ireland or on a temporary or limited permission when making their applications”. The Times explains:
These marriages are typically arranged by failed asylum seekers or former students from Asia who no longer have permission from immigration authorities to stay in Ireland.
Minister for Justice Dermot Ahern told his EU counterparts at a meeting in Spain at the weekend that there was evidence of growing abuse of immigration laws with a growing number of non-EU nationals marrying women from the Baltic states.
Some 110 of the 384 residency applications made by Pakistanis in the Republic in 2009 were based on marriages to Latvians.
A further 50 applications were based on marriage to Polish nationals while 47 applications were based on Pakistanis marrying Estonians.
Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.
In the Canadian Supreme Court’s decision in Prime Minister of Canada v Omar Khadr  CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.
The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of ‘nudging’ judgment we have seen in both the US and the UK superior courts in the ‘War on Terrorism’ (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and ‘the people’? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.
‘[t]oday the impulse towards interdependence is immeasurably greater. We are witnessing the beginnings of a new doctrine of international community. By this I mean the explicit recognition that today more than ever before we are mutually dependent, that national interest is to a significant extent governed by international collaboration and that we need a clear and coherent debate as to the direction this doctrine takes us in each field of international endeavour. Just as within domestic politics, the notion of community – the belief that partnership and co-operation are essential to advance self-interest – is coming into its own; so it needs to find its own international echo. Global financial markets, the global environment, and global security and disarmament issues: none of these can he solved without intense international co-operation.’
This, together with his assertion in his interview before Christmas with Fern Britton – where Mr. Blair asserted that had there were alternative bases other than weapons of mass destruction to bring down Saddam Hussein- alludes to the possibility of humanitarian intervention to bring about regime change as another legal justification for going to war.
The doctrine of humanitarian intervention is a very controversial basis for the use of force in international law and though the more recently developed doctrine of responsibility to protect has developed since the invasion its remit would not seem to immediately cover the situation in Iraq at the time of the invasion.
One of the more most recent uses of humanitarian intervention as justification for the use of force was in Kosovo in 1999. This was undertaken by NATO to stop the increased abuse by the Serbian Government of Kosovar Albanians. It resulted in cases against individual members of NATO at the ICJ and much debate as to whether a right of humanitarian intervention had emerged. Whether or not it did contribute to the establishment of humanitarian intervention it did set a political precedent for action outside of the United Nations where sanctions were not forthcoming. This precedent, which was not argued at the time of the Iraqi invasion, certainly seems to have echoes in claims now made that there were humanitarian reasons for invading Iraq and that these aims have largely been achieved and thus the War was justified even if it was outside the UN and in breach of Article 2(4). While the lack of weapons of mass destruction have made the self-defence argument less sustainable, the move towards justification on the basis of community values or humanitarian interests is troubling.
The Equality and Rights Alliance has produced a document which summarises the proceedings of their recent ‘Fairer Ireland’ conference.
Within the document are links to presenters’ slides and to youtube videos of their speeches. Part 1 of Colm O Cinneide’s speech, for instance – which makes some reference to the Equality Authority’s role in the Portmarnock decision – is here and part 1 of Karen Chouan’s (Equanomics) speech is here.
6th NORTH/SOUTH IRISH CRIMINOLOGY CONFERENCE
21st – 22nd JUNE 2010
UNIVERSITY OF ULSTER, BELFAST CAMPUS
CALL FOR PAPERS
The 6th North/South Irish Criminology Conference will be hosted by the School of Criminology, Politics and Social Policy at the University of Ulster, Belfast Campus on Monday, 21 June and Tuesday, 22 June 2010.
The aim of the conference is to provide a forum for academics, post-graduate researchers, community activists, practitioners and policy makers in the fields of criminology and criminal justice to come together to exchange ideas and disseminate research. This is of particular significance given the impending devolution of policing and justice in Northern Ireland, and increasing awareness, throughout Ireland, of gender-specific needs within criminal justice processes, and the needs of families and victims.
Panels will include but are not limited to:
• Addressing the Needs of ‘Victims’ and ‘Offenders’
• City Transformation and Crime
• Criminal Justice Processes and Accountability
• Future Directions in Criminology
• Gender and Criminal Justice
• Globalisation, Migration and Immigration
• Policing, Regulation and Surveillance
• Prisoners, Detainees and their Families
• Restorative Justice Practice and Theory
• Crimes of the Powerful
• Children, Young People and Criminal Justice
If you are interested in presenting a paper at the conference, please submit an abstract of no more than 250 words to email@example.com by Monday, 1 March 2010.
Abstracts should include the proposed title of the presentation, the name(s) of the author(s), affiliation, email address and phone number. Notification of acceptance will be provided by Thursday, 1 April 2010.
If you would like to register for the conference, please email firstname.lastname@example.org by Friday, 30 April 2010.
There is no registration fee for the conference.
Civil Partnership Bill, Second Stage….Of Tatchell, MacLiammoir, Fathers and Left-Wing Extremist Feminism
On Wednesday the second stage debate on the Civil Partnership Bill continued in the Dail (see an explanation of the Irish legislative process here). The Bill has now passed the second stage and has been referred to the Select Committee on Justice, Equality and Women’s Rights. An archive of the customary liveblog (and very entertaining it is too) is here.
References were made throughout the debate to two Bills which preceded the present government’s efforts; the Norris Civil Partnership Bill of 2004 and the Labour Party’s ill-fated Civil Unions Bill of 2006 (notable for its provision for children’s rights and for adoption).
A Threat to Marriage?
Beverley Flynn (FF) emphasised the special protection afforded to marriage under the Constitution. This was a theme taken up by Brian Hayes (and by many his FG colleagues) who, unusually (perhaps almost uniquely) for this debate, actually discussed and demonstrated some understanding of the applicable law: One of the myths that has been circulated is that the Bill will downgrade the position of marriage. I wish to refute that assertion because I do not believe marriage will be downgraded at all. The clear protection afforded to marriage under Article 40 of the Constitution is absolute. That protection can be changed only on foot of a referendum and it cannot be altered by an Act of Parliament. That was made abundantly clear in the remarks of Ms Justice Dunne in the High Court in the case taken by Dr. Zappone and Dr. Gilligan, in which they attempted to have recognised a marriage of their union in Canada in Irish domestic law. It is worth putting on the record what Ms Justice Dunne said in that case, which, I understand, is still under appeal in the Supreme Court. She said: I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple… The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage… Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. In no way will the passage of this Bill downgrade or undermine marriage because absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum. It is the people who will decide whether that definition of marriage as expressed in Bunreacht na hÉireann can change. I reject the notion that in some way the Bill downgrades marriage because absolute and fundamental constitutional protection is given to marriage in Articles 40 and 41.
It is interesting to note that the Minister for Justice in his response referred to two ways in which the Bill bears the marks of the government’s desire to protect the institution of marriage. First, he discussed the balance to be struck between a past spouse and a current co-habitant: I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General’s advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant. Second he distinguished between the relief available on marriage breakdown and that sought to be made available when cohabiting relationships end: The Bill’s redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.
In the continued second stage debate on the Civil Partnership Bill 2009 which took place in Dáil Éireann yesterday the matter of so-called ‘conscience clauses’ arose with a number of Deputies suggesting that the Bill ought to include such a clause to allow people whose ‘conscience’ indicated that homosexuality or civil partnerships were a moral wrong to refuse to engage in the creation of such civil partnerships. This proposal, which did not gain purchase in the Dáil to any great extent, brings a number of questions to my mind that I want to briefly address here. In the main the debate concentrated on the public servants and registrars, but previously noises were made about private service and goods providers as well (marvellously covered by Suzy Byrne here and here) so I will briefly address that matter below.
Should ‘conscience clauses’ exist within equality legislation?
The first question is one of principle. If a piece of legislation is introduced with the purpose of trying to create formal legal equality or in some way to reduce inequalities (and I think the Civil Partnership Bill can be firmly placed in that latter category) then ought such legislation contain any ‘get out’ clauses of this nature? One’s conscience, surely, is a private matter. Directing that registrars may not refuse to conduct a civil partnership ceremony on the basis of their own beliefs does not direct that those beliefs may no longer be held; it simply precludes someone from using those beliefs as a reason to refuse to carry out a state function. The registrar, as a private citizen, may hold and profess whatever moral positions s/he wishes but as a public servant s/he is required to carry out public functions. This separation of the private individual and the professional is a normal requirement of professional life; there seems to me to be no basis for changing that in the context of this Bill. If the Oireachtas has, through legislation, decided to take equalising/decreasing-inequality measures then it seems nonsensical for such a clause to be included as, through such clauses, agents of the state would be enabled to act in a manner squarely in contrast with the policy and legislative objectives of the State. At the very least this sends unwelcome mixed messages from the State to those affected. It also does nothing to minimise the likelihood that same-sex couples would come into contact with behaviours of the state that are perceived as being homophobic. It therefore has the capacity both to undermine the State’s objectives and to give rise to feelings of humiliation and grievance in gay and bisexual people’s interactions with the State. Read more…