Guest Contribution: Saoirse Brady (FLAC) on the Direct Provision System

We are delighted to welcome this guest contribution from Saoirse Brady, Policy and Campaigns Officer,  Free Legal Advice Centres. You can find out more about Saoirse on our Guest Contributors page.

To mark the tenth anniversary of the direct provision and dispersal system, FLAC launched its report One Size Doesn’t Fit All.   The report updates the 2003 FLAC report Direct Discrimination? which looked at the way in which asylum seekers and persons seeking other forms of protection were accommodated in Ireland, set apart from other destitute individuals.  The title of the report refers to the way in which the direct provision and dispersal system is operated: Residents are not treated as human beings but rather as a collective group without individual needs or personal circumstances.

Direct provision and dispersal was introduced as a nationwide policy in April 2000. It was introduced initially to alleviate the housing shortage faced by the Eastern Health Board due to the high numbers of people coming to seek asylum in Ireland.  Ireland is a party to the 1951 UN Refugee Convention and it is important to understand that anyone who comes to Ireland “to seek and to enjoy… asylum from persecution” is entitled to enter and remain here until a final determination is reached on their protection status.    Despite the dramatic decrease in the number of asylum seekers, the Department of Justice, Equality and Law Reform (DJELR) continues to operate the policy of accommodating persons seeking protection in centres where they are given three meals a day at set times and a weekly allowance of €19.10 for an adult and €9.60 for a child. This is the only social welfare payment never to have increased.

Guest Contribution: O’Mahony on Safeguarding People with Disabilities

We are delighted to welcome this guest contribution from Charles O’Mahony of the Centre for Disability Law and Policy at NUI Galway. This is cross posted from the Disability Law News blog. You can find out more about Charles on the guest contributors page.

Safeguarding Persons with Disability from Abuse and Exploitation

There is a growing awareness around abuse perpetrated against vulnerable groups in our society.  In particular, elder abuse and child abuse now seem to be firmly ingrained in public consciousness and in the consciousness of policy makers and legislators.  However, as we saw this week with the discussion and debate around the publication of the Report into the death of Tracey Fay problems remain in the provision of adequate protection and in the investigation and reporting of the states failings.  To see a blog post on this click here.

There is a feeling that the issue of abuse of persons with disabilities has not evolved to the same level of consciousness surrounding child and elder abuse.  For example, last month it was reported that more than 500 official complaints (approx three a week) over the past two and a half years have been made regarding abuse and mistreatment of persons with disabilities in residential settings.  To see a blog post on this click here.  The reaction to the report in the Irish Times was not on the scale that one might have expected (or hoped) and the level of debate not as insightful.  Following the report there was no perception of urgency in introducing mandatory standards and independent inspections of these services.

Guest Contribution: Walsh on Compulsory Acquisition for Private Development

We are very pleased to welcome this guest contribution from Rachael Walsh, a PhD candidate in Trinity College Dublin, on lessons for Irish courts from the US experience of compulsory acquisition of land for the purposes of private development. You can learn more about Rachael on our Guest Contributors page.

Compulsory Acquisition for Private Redevelopment – Lessons from the U.S.

A basic legal principle in most jurisdictions that protect the right to private property is that the State cannot take an individual’s property and transfer it to another person in order to confer a private benefit. Rather, the State must have a public purpose of some kind to support its use of compulsory acquisition powers. This limit on the State’s power safeguards an individual’s right to possession of his or her property rather than simply to the value of the property, as the State is not free to take property just because it pays compensation to the dispossessed owner.

Controversy has arisen in the U.S. over whether “economic development” is a sufficiently public purpose to support a compulsory acquisition of private property for redevelopment by another private individual or entity, reaching its height in the debate surrounding the Supreme Court’s decision in Kelo v City of New London 545 U.S. 469 (U.S. 2005). The Court held that New London, which was designated a “distressed area” because of its high unemployment rate, could compulsorily acquire the applicants’ homes in order to implement a development plan for the area. The plan was drawn up when Pfizer announced it intended to build a $300 million research facility in the city, and it proposed the construction of a waterfront conference hotel, restaurants, shopping and marinas, as well as research and development office space. In a 5-4 decision, the Supreme Court upheld New London’s exercise of its compulsory acquisition powers. The decision has been widely criticised in the U.S. and has galvanised the property rights movement, resulting in amendments to state constitutions to limit the use of compulsory acquisition powers. Unfortunately, in New London the planned construction has not happened, and the acquired lands remain undeveloped. To add insult to injury, Pfizer announced it was pulling out of the city in November 2009. (New York Times report)

Walsh on Domestic Violence Law Reform in France

We are pleased to welcome a second guest post from Kieran Walsh of UCC and Griffith College Cork. You can read more about Kieran on the guest contributors page.

France is currently updating its domestic abuse laws. The legislation has been passed by the lower house and now awaits senate approval. There has been unusual cross-party support for the new provisions which have provoked considerable derision in the Anglophone blogosphere. There are two key changes which have been made to the law: the criminalisation of psychological abuse in intimate relationships and the tagging of people barred from the family home.

Blog Carnival on the Proposed Child Rights Constitutional Amendment (Expressions of Interest)

On Friday 26 February, Human Rights in Ireland will host a mini Blog Carnival on the draft wording for a constitutional amendment on the child set out in the final report of the Oireachtas Committee on the Constitutional Amendment on Children.

Postings could take a number of different forms, including:

– Analyses of the draft wording in terms of its capacity to address current shortcomings in children’s rights protection under the constitutional framework. Topics of particular interest would include the implications of the draft wording for the realisation of children’s rights in areas such as child protection, adoption/guardianship, child poverty, refugee children, children in care and children in custody.

– Issues surrounding a forthcoming referendum on the draft wording. What forms are the various campaigns around any such referendum likely to take? What obstacles exist with regard to advancing or improving the wording as it stands? What factors will influence the ultimate outcome of such a referendum?

As well as relying on the in-house expertise of Human Rights in Ireland bloggers, those in the human rights, community, voluntary and other related sectors are invited to submit proposals for commentary that they may wish to make on the budget. Blog posts should be between 400-1,000 words (max).

Those interested are asked to contact me at aoife.nolan@qub.ac.uk (before noon 24 February 2010) so that a full Blog Programme can be ready to upload on 26 February.

Guest Contribution: Murphy on Terrorism Sanctions in the EU

We are very pleased to welcome this guest contribution from Dr Cian Murphy (right) of City University, London. You can find out more about Cian on our guest contribitors page.

The Rule of Law Inches Forward: UN Sanctions in EU Law

Chafiq Ayadi is one of only two individuals resident in Ireland whose assets are frozen under the UN sanctions regime established by UN Security Council resolution 1267. Two years ago I published a short note in the 2007 Dublin University Law Journal (‘Ayadi v Council: Competence and Justice in the “War on Terrorism”’ [2007] Dublin University Law Journal 426) critically commenting upon the decision of the EU General Tribunal (then the Court of First Instance) in his legal challenge to the freezing of his assets (Ayadi v Council). I concluded, somewhat pessimistically, by noting that

For the European resident targeted by the sanctions, access to justice is guarded by Kafka’s doorkeepers. For his subsistence, the individual must petition his government. For his delisting, he must petition the Sanctions Committee. For protection of his rights, he must wait, for the doorkeepers are many and the door, though apparently open, cannot be passed through.

Guest Post: Griffin on the Final Report of the National Commission on Restorative Justice

We are pleased to welcome this guest post from Diarmuid Griffin, Lecturer in Law at NUI Galway. You can read more about Diarmuid on our Guest Contributors Page.

The National Commission on Restorative Justice published its final report in December 2009. The Commission, announced in March 2007, was set up to examine the wider application of restorative justice within the criminal justice system.  The Commission was established following the report of the Joint Committee on Justice, Equality, Defence and Women’s Rights which recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.

Restorative justice programmes can already be seen in operation in Ireland for juvenile offenders through the Garda Diversion Programme or a court-referred Probation Service Conference and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght.  While there are various different models of restorative justice, the practice generally involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour.  For example, rather than sentencing an offender to a traditional term in prison a judge may refer an offender into a restorative programme where such a negotiation may occur.

In its final report, the Commission recommends the national implementation of restorative justice for adult offenders.  The Commission believes that such a programme “will make a positive contribution to the lives of all citizens, and particularly to those more closely connected to the offending behaviour.”  Having conducted an extensive examination of the use of restorative justice in Ireland and in other jurisdictions, the report attempts to provide a workable framework for the development of restorative justice that is mindful of both economic and criminal justice realities.

Guest Contribution: Davis on Non-Jury Trial

We are delighted to welcome this guest contribution from Dr Fergal Davis, a lecturer in Lancaster University School of Law. You can find out more about Fergal on the Guest Contributor page.

The Special Criminal Court – is this the lamp which shows that freedom lives?

(With apologies to Lord Devlin)

On Tuesday of this week a trial will begin in the Royal Courts of Justice, London.  This particular trial is attracting some notice because ‘for the first time in about 400 years, a trial on very serious criminal charges, for which the accused, if found guilty, will spend years in prison, is to be held without a jury’. (The Guardian). Of course many trials in the UK are held with juries on a daily basis before magistrates and Crown Court Judges but the UK Criminal Justice Act 2003 allows for serious cases to be heard without a jury where the nature of the trial is too complex for a jury to comprehend or where ‘there is evidence of a real and present danger that jury tampering would take place’. I have argued elsewhere (Guardian Comment is Free column) that circumstances exist whereby jury trial is incapable of securing a fair trial and that in those circumstances the right to a fair trial should supersede the right to trial by jury.  It is my, somewhat contentious, belief that the Irish experience with the Special Criminal Court (with some suitable amendments) ought to be held up as a positive model for securing the right to a fair trial.

The Special Criminal Court has two key strengths.  Firstly, under s.41(4) of the Offences Against the State Act, 1939 (OAS, 1939) the ordinary rules of evidence apply – the same rules which are applicable in the Central Criminal Court. This is significant because it is the rules of evidence which guarantee a fair trial.

The guarantee that ‘as far as is practicable’ the same rules of evidence will apply is important and the UK Criminal justice Act, 2003 secures this by creating a non-jury court which is simply a branch of the ordinary Crown Court – it is the Crown Court sitting without a jury.  This is based on the ‘Diplock Court’ model which, in accordance with s.2(1) of the Northern Ireland (Emergency Provisions) Act 1973, created a division of the Belfast Crown Court sitting sans jury.

However, the Special Criminal Court model is superior specifically because it is not simply a branch of an existing ‘ordinary court’.  S.35(2) OAS, 1939 determines that the court hears cases where ‘the ordinary courts are inadequate’. This mirrors Article 38.3.1˚ of the Constitution.

By allowing for a ‘special’ trial procedure the Irish Constitution and its legislature acknowledged that in certain circumstances jury trial does not equate to a fair trial; by creating a ‘special’ court they also acknowledged that this should stand apart from the usual criminal justice process – that the removal of the jury while acceptable is a departure from the norm.  Unfortunately, Irish parliamentary scrutiny of the necessity to maintain the Special Criminal Court has been lax – the court has existed permanently since 1972 and there has only been one formal review in 2002.  In the UK context the Joint Committee on Human Rights might be better placed to conduct ongoing and thorough scrutiny.

The Special Criminal Court is not without flaws but as a model of non-jury trial but it is superior to the British legislation.  In seeking to maintain as ‘normal’ a process as possible the UK model fails to adequately address the ‘special’ nature of these non-jury trials and runs a greater risk of normalization.  Upon In 1972 a source close to the Belfast Brigade of the Provisional IRA declared that the proposed Northern Irish legislation was the same as that in the Republic: ‘the only difference … is that the one in Dublin is written in Irish’ (Aitken, “New laws will tighten net on terrorists”, The Guardian, 21 December 1972).  Such a statement makes good copy but there is a significant difference between an extraordinary regime operating within and without the normal criminal process.

Hickey on Religious Patronage of Irish Primary Schools and Republicanism

This guest post is contributed by Tom Hickey, a PhD candidate at the Law school, NUI Galway, under the supervision of  Prof. Gerry Quinn.  He attended Princeton University on a Visiting Student Research Collaborative Scheme in 2009, under the supervision of Prof. Philip Pettit, at the University Center for Human Values.

“The current management of schools is working exceptionally well. The patron is in place in terms of ethos but has nothing to do with the overall management of schools. That is the responsibility of the board of management.”

Minister for Education, Batt O‘Keeffe T.D., Dáil Éireann, December 2009.

The recently published Ryan and Murphy reports have suddenly brought the issue of the extent of religious patronage in the Irish primary school system into very sharp focus. Most of us involved in public discourse in Ireland are by now familiar with a statistic we may not have been familiar with six months ago: 92% of our primary schools are run by Catholic institutions. And despite the Minister’s assertion in the Dáil in early December, there seems a growing consensus that this is neither appropriate nor sustainable. Archbishop Diarmuid Martin has even suggested that the Church divest itself of control of at least some of the schools, and has described the current level of control a “near monopoly,” “untenable,” and a “historical hangover.” Indeed, the Archbishop went further and suggested that the present situation is “in many ways detrimental to the possibility of maintaining a true Catholic identity in Catholic schools,” a thought that should interest the many families across the state who still want this kind of education for their children.

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.