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On this Day: First for Irish Divorce

January 17, 2010 1 comment

On January 17, 1997, Barron J in the High Court granted Ireland’s first divorce decree (prior to the formal introduction of the Family Law (Divorce) Act 1996), 14 months after the people had voted, by a slim majority, in favour of the 15th Amendment to the Constitution (The Irish Times remembers ‘the count’ here and Carol Coulter provides analysis here).  The applicant in R.C. v. C.C., a seriously ill man, had been separated from his wife for several years and sought to regularise his new relationship before his death. This open-access article by Christine James provides a tight discussion of the history of divorce law in Ireland.

Divorce had been banned under the Irish constitution since 1937. An attempt to permit divorce by constitutional amendment had failed in 1986, and though the 1995 attempt succeeded, it was vociferously resisted by conservative and religious groups so that the gap between ‘yes’ and ‘no’ was exceptionally small. As this article by Jenny Burley and Francis Regan notes, although the ‘no’ campaign insisted that the introduction of divorce would ‘open the floodgates’ – that marriage breakdown figures would rise dramatically – this has not come to pass.

Public education and migration: the patronage system under scrutiny

January 13, 2010 Leave a comment

As the Irish Independent reported yesterday, the OECD “has proposed that the Government set up new state-run primary schools to better cater for the new multi-ethnic pupil population.” In its review of migrant education in Ireland, published in December 2009, the organisation observed: “the Irish authorities should consider creating net new capacity and re-deploying existing capacity through this channel [of multidenominational schools].” Furthermore, it notes: “a new model of primary school patronage, under the VEC structure, catering for children of all beliefs and none, reflecting the increasing diversity in this area, is currently in operation in two locations in Dublin.”

The system of educational patronage, through which the public education function in Ireland has historically been delegated to bodies owned by, and operated according to the ethos of the religious denominations prevailing in particular areas, has been the subject or renewed contestation since the publication of the Ryan and Murphy reports in particular. Although the State remains formally neutral in law between different religious denominations, most notably in the Education Act 1998, which gives legislative status to school “patrons” – to whom boards of management are accountable for the upholding of the ethos or “characteristic spirit” of schools – Ireland nonetheless has a de facto hegemony of Catholic-ethos schools, with parents in many areas of the State having little choice but to avail of these. For recent commentary on the patronage system from the standpoint of the republican premise of non-domination, see Tom Hickey’s recent post on this site.

Read more…

The Offence of Blasphemy and Constitutional Change

January 3, 2010 10 comments

On New Year’s Day the Defamation Act 2009 came into force, including the controversial s. 36 provision relating to the offence of blasphemy. This has been greeted with much publicity and attention in the international media and by an attempt on www.blasphemy.ie to intentionally contravene the provision. Indeed, today’s Sunday Times reports that the founder of Atheist Ireland, Michael Nugent, intends to send a copy of the 25 allegedly blasphemous quotes published on the site in order to try to provoke prosecution. As reported yesterday, however, my view is that this is unlikely to ‘succeed’. Quite apart from the debates around the appropriateness of such a law in a democratic society, it is important to note that the offence has been constructed in such a tight manner that, it seems to be, to be extremely difficult to commit the offence—either intentionally or accidentally. Indeed, the attempt on www.blasphemy.ie would tend to further back up this view. Read more…

On This Day

December 29, 2009 Leave a comment

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.’

Pre-Implantation Embryos and the Irish Constitution

December 15, 2009 1 comment

As we blogged earlier the Supreme Court today decided the case of Roche v Roche concerning, inter alia, the constitutional status of spare embryos created through IVF treatment but not implanted. The case also had important private law aspects but it is the constitutional issue that is most relevant to us at HRinI. Having now read the judgments in this case I have picked out some of the relevant quotes re the constitutional issue from the various judges. As I suspected earlier, the matter is perhaps not as cut and dried and it at first appeared in the news reports mainly because of some equivocation in the Chief Justice’s judgment although the remaining judgments seem to me on an early reading quite categorical in their finding that pre-implantation embryos do not have constitutional protection.

It is appropriate to begin with the judgment of the Chief Justice which is available here. Following an overview of the moral and ethical dilemmas faced in considering when it might be said that ‘life’ begins, the Chief Justice held that this is essentially a legislative matter as opposed to one of pure constitutional interpretation:

One comes back to the fundamental issue in this case namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, ethical, philosophical, theological and scientific. It is an issue on which engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

Absent a broad consensus on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

….

…in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The Courts do not have at its disposal objective criteria to decide this as a justiciable issue….The onus rests in the Oireachtas, to make the initial policy determination so as to define by law when ‘the life of the unborn’ acquires protection. The other alternative is an amendment to the Constitution.

….

Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos, constitute “life of the unborn” within the meaning of Article 40.3.3.

I don’t think  CJ’s judgment holds that constitutional protection begins at implantation and that is that. Rather it think it says that we can not be satisfied that the constitutional protection begins pre implantation. Making that decision is not a judicial role. It is a policy matter. He essentially invites the Oireachtas to legislate in this context. However, the CJ’s judgment stands alone in this context. The starkest contrast is perhaps with the judgment of Denham J available here: Read more…

Embryos and the Right to Life: The Supreme Court Decision

December 15, 2009 2 comments

RTE News reports that the Supreme Court has handed down its judgment in a case in which case the appellant was seeking to have three embryos created with her ex-partner released to her for implantation. Her ex-partner, on the other hand, claimed that there was no agreement permitting her to have these embryos for use following the dissolution of the relationship. From a human rights perspective it is particularly important to note that a sizeable amount of the argumentation revolved around whether an embryo is entitled to constitutional protection under Article 40.3.3 of the Constitution (right to life). The Supreme Court held that the constitutional protection only applied from the point of implantation of an embryo and not from the point of creation.

The judgment is not currently available online although we anticipate that it will be posted relatively shortly. It is somewhat difficult to draw conclusions from a news report of a court decision, and it would be wise to wait to read the exact terms of the Court’s decision on implantation and constitutional protection before commenting on its constitutional significance, however if the RTE report is an accurate representation of the Court’s decision in this respect then this would seem to put any questions that may have existed about measures such as the morning after pill beyond constitutional doubt.

We on HRinI will, of course, be covering the human rights law elements of this decision further as the judgment is released, digested and discussed.

UPDATE The judgments in this case can now be accessed from the Courts Service website by clicking here.

Update on A, B and C v. Ireland

December 9, 2009 4 comments

While everybody at home was paying attention to the budget, the Irish Times reports that Strasbourg saw the opening day of A, B and C v. Ireland. The webcast of this morning’s hearing is here and Channel 4 News includes a short report including footage of today’s proceedings and an interview with Ruth Fletcher of Keele University here.

There are two main elements to the state’s defence of the Irish legal regime on abortion. First, the Times reports that the Attorney General Paul Gallagher SC  (left) insisted that the country’s abortion laws were based on “profound moral values deeply embedded in Irish society”. Mr Gallagher suggested a broad Irish allegiance to the law as it stands when he said the country’s legal position on abortion had been endorsed in three referendums, as well as being safe-guarded in protocols attached to the Maastricht and Lisbon treaties. However, it is also true to say that the three referendums, while they retained the prohibition on abortion, have steadily narrowed its scope since 1983 while a 2007 Irish Times mrbi poll indicated that Irish attitudes around abortion are considerably softer than the AG would allow.

Read more…

A, B and C v. Ireland starts today

December 9, 2009 1 comment

A, B and C v. Ireland, the case in which three women will challenge Ireland’s abortion regime before the Grand Chamber of the European Court of Human Rights begins today. It is the first Irish case to be heard by the Grand Chamber since Senator David Norris’ case which resulted in the decriminalisation of homosexuality. The Irish Family Planning Association provides resources here,  I have blogged about the case in some detail here and there is more recent press coverage here, here, here, here, here and here. The ever-objective Irish Examiner deserves special mention for illustrating its coverage with a picture of a baby’s foot.

The issues affecting the three women in A, B and C – many of which are described in Anne Rossiter’s book ‘The Abortion Trail’ – are still very much live. The Crisis Pregnancy Agency recently reported a drop in the – still substantial – numbers of Irish women travelling to the UK for the purposes of abortion, at the same time highlighting the presence in the state of ‘rogue’ pregnancy advisory services designed to dissuade women from terminating their pregnancies. We promise further analysis when the judgment is handed down.

Read more…

Gender Recognition Legislation in the New Year?

November 30, 2009 8 comments

The Irish Examiner reports today that, on foot of a Green Party proposal, legislation ‘allowing transsexuals to be recognised in their acquired gender’ will go before the Dail in the new year. The Examiner reports that ‘the state has dropped an appeal of a High Court decision that it is in breach of the European Convention on Human Rights in not having a process and a register legally to recognise the acquired gender of transsexual persons.’ Tanya blogged about the proposals for gender recognition legislation in the new Programme for Government in some depth here. We hope to provide commentary when details of the proposed legislation emerge.

Update: Great video interview with Lydia Foy and Michael Farrell of FLAC here.

Hat-tip: One of our readers, Cat McIlroy, says

I spoke with Dr. Foy’s solicitor this afternoon to clarify the appeal statement in the Irish Examiner – neither he nor Lydia has heard anything regarding the Government dropping the appeal.

Thanks Cat!

Is Constitutional Revolution Nigh in Ireland?

November 8, 2009 9 comments

constRecent weeks and months have seen a seemingly endless stream of proposals emerge for constitutional change in this jurisdiction and reading today’s Sunday Times I noticed that Enda Kenny—the leader of Fine Gael and quite likely to be Ireland’s next Taoiseach [Prime Minister]—has now added another proposal to the list: that the President’s term would be reduced to five years. As far as I am aware we are now in the midst of a number of debates with constitutional implications:

  1. The Fine Gael proposal for the abolition of the Seanad
  2. The Fine Gael proposal for the reduction of the Presidential term
  3. The commitment in the renewed programme for government to hold a constitutional referendum to recognise the role of parents in the home rather than that of mothers and wives (I blogged about this here)
  4. The commitment in the renewed programme for government to hold a constitutional referendum to introduce a Court of Civil Appeal
  5. The debate about a constitutional amendment on children’s rights (about which Aoife blogged here)
  6. The renewal of the debate around a Charter of Rights for the Island of Ireland as contemplated by the Belfast/Good Friday Agreement and under consideration by the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights Commission

There may even be more proposals than this floating around, but these are the ones that come immediately to mind. Other matters have arisen recently for discussion where the government has committed to pursuing a particular course of action in order to avoid the perceived need for constitutional reform; I am thinking here in particular about the Civil Partnership Bill 2009 (about which we blogged here, here, here and in a guest contribution from Andrew Hayward) and the inclusion of a crime of blasphemy in the Defamation Act 2009 (about which Colin blogged here). In addition, there may be developments in the near future that will require us to at least consider whether constitutional reform would be appropriate in other areas such as the right to life of the unborn, depending on the outcome of ongoing litigation in the European Court of Human Rights (about which Máiréad blogged here).

This is beginning to look remarkably familiar, especially to people who took an interest in the constitutional reform programme undertaken by New Labour since their election in 1997 which involved, among other things, the introduction of the Human Rights Act 1998 and the creation of the UK Supreme Court. The Irish Constitution will celebrate its 75th birthday in 2012 and as that time quickly approaches one is tempted to ask whether the momentum towards constitutional reform is essentially a push towards retirement for the Constitution as we know it. What is particularly interesting to me, however, is that Enda Kenny seems to be especially prone to recommending constitutional change and the abolition or reform of constitutional offices and institutions without necessarily reasoning out his proposals particularly well. In fact, they smack somewhat of populism, which is disappointing to those of us who might generally welcome a change of government in the near or medium future.

The fact that we have the great privilege in Ireland of amending our Constitution by means of popular referendum means that there is always a risk of the introduction of populist referenda. Indeed, the Citizenship Referendum would, in my view, have fallen into this category. The introduction of a constitutional discourse into election-related canvassing and the promise—as Kenny has made—of a package of reform being put to the people for referendum within one year if Fine Gael goes into government carries a serious risk that constitutional reform, which should be principled and reasoned and framed by considerations of necessity and of whether the constitution is fit for purpose, will become an electoral pledge resulting in populist referenda and enormous constitutional change that is insufficiently reasoned.

There are arguments for the kinds of constitutional reform that Kenny has suggested, however there are also arguments against same or for other alternatives. The Constitution ought not to be up-for-grabs in a general election, not least because fundamental rights rarely fare well in populist discourses and referenda. Constitutional reform needs a far more reasoned process of debate and consideration than can be afforded within an election (or ‘election ready’) milieu.