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Archive for the ‘Legislation and Law Reform’ Category

Bye Bye Justice, Equality & Law Reform; Hello Community, Equality and Gaeltacht Affairs?

March 23, 2010 14 comments

The  Irish cabinet reshuffle (see here, here, here and here) has resulted in the  Department of Justice, Equality and Law Reform , being divested of issues relating to equality, disability, integration and human rights. These important areas will be subsumed into the new Department of Community, Equality and Gaeltacht Affairs. The comments below are some initial reactions to this news.

Justice, Equality and Human Rights-Why?

I do not believe in making structural changes for their own sake. Too often, changes in structures can be pursued to disguise a lack of clear priorities or the determination to implement them. This Government has a clear agenda which I am determined will be driven forward with energy and commitment. There is no time to be wasted on extensive restructuring at the expense of action to implement our policies.

An Taoiseach Brian Cowen T.D.  23 March 2010

From 1992 until 1997, there was Minister for Equality and Law Reform, however post the 1997 general election, this was subsumed into the Department of Justice (to become the Dept. of Justice, Equality and Law Reform (DJELR).This was a time of enormous economic growth within the Republic of Ireland and a number of months before the signing of the Belfast/Good Friday Agreement. The thrust of today’s speech by An Taoiseach’s recognised the need for a re-invigorated economy based on job creation and innovation. For reasons highlighted by the statement of An Taoiseach above, structural changes were made to a number of departments.

Read more…

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Update on the Civil Partnership Bill 2009

March 23, 2010 2 comments

The progress of the Civil Partnership Bill 2009 through the Oireachtas continues and today’s Irish Times contains two pieces on the cohabitation provisions of the Bill. As we have documented here and here the cohabitation provisions (i.e. for cohabiting couples who are neither married nor in civil partnerships) attempt to establish a kind of safety net. However, they apply only to ‘qualifying cohabitants’ and there is a serious fear—articulated in the Irish Times by Professor John Mee of UCC—that non-qualifying cohabitants will assume themselves protected when in fact no such protection exists.

Read more…

The Renewal of Control Orders before the UK Parliament

March 8, 2010 4 comments

At the end of February the UK Parliament’s Joint Committee on Human Rights reconsidered the use of Control Orders under the Prevention of Terrorism Act 2005, which the Home Secretary (Alan Johnson, pictured left) has asked Parliament to renew for another year from 11 March (the fifth such renewal). Control Orders impose “tailored” restrictions upon individuals on whom they are imposed, which typically involve relocation of the individual, restricted contact with friends and family and a denial of access to the internet and other unmonitored forms of communication.

The Home Secretary informed Parliament in formulaic language based upon the wording of the PTA 2005, that, ‘the powers are needed to ensure that a control order can continue to be made against any individual where the Secretary of State has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity’. The chief argument marshalled in favour of the orders was that, ‘it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism’. Read more…

Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010

March 5, 2010 2 comments

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 (as examined previously by Yvonne) was debated at second stage yesterday and referred to the Select Committee.

The Bill provides for the taking of various categories of samples, both for purposes of establishing or ruling out involvement in the commission of a specific offence, and for the creation of DNA profiles to be kept on the newly established statutory DNA database.

As regards taking DNA samples from arrestees, the Bill limits the range of relevant offences to serious crimes, such as firearms offences, and those which have a minimum punishment of five years. Thus, the proposed Irish approach to sampling in terms of its scope complies with and in fact surpasses the demands of the Grand Chamber in S. and Marper v UK which found the English scheme of blanket sampling and retention of DNA from arrestees for any recordable offence to be in breach of Article 8.

Moreover, the power under the Bill to take a sample from a detainee for the reference index of the Database does not apply to children below the age of 14, again indicating that the drafters are treading cautiously due to the statement in S. and Marper that that the retention of unconvicted persons’ data may be especially harmful in the case of minors “given their special situation and the importance of their development and integration in society”.

However, the procedures in Part 10 concerning the destruction of samples and profiles and the removal of profiles from the Database ought to be revised. The “default destruction period” for samples taken from detainees or offenders in the context of investigations is three years from the taking of the sample, and the same period applies to evidential samples when proceedings are not instituted, or after acquittal or discharge. However, these default destruction periods may be extended by the District Court. The equivalent Scottish law, as cited in S. and Marper, permits a similar extension by the Sheriff Court but for two years only (Criminal Procedure (Scotland) Act 1995, s. 18A), and a similar limiting qualification should be added to the Irish Bill.

The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective

February 16, 2010 10 comments

After over 2 years, 62 meetings and numerous milestones highlighting the precarious position of children’s rights in Irish society including the publication of the Ryan and the Murphy reports, the Oireachtas Committee on the Constitutional Amendment on Children has at long last issued its third and final report.

The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.

Having deliberated on the proposed Article 42(A).1–4 set out in Twenty-eighth Amendment to the Constitution Bill 2007, the Committee recommended ‘an alternative approach’. According to the Report:

The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.

Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.

Children
Article 42
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.

5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.

8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

In doing so, the Committee highlighted that

It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.

There is much to be welcomed in the draft amendment, albeit that it still evidences some serious shortcomings in ensuring holistic protection to the rights of the child. In addition, there are a wide range of perspectives from which the proposed text could be considered. This blog entry, however, will focus on whether, if adopted, the Committee’s proposed wording would bring Ireland into compliance with its voluntarily assumed international human rights law obligations under the UN Convention on the Rights of the Child. Read more…

Yet Another Delay to the Children’s Rights Constitutional Amendment?

February 15, 2010 2 comments

According to the Irish Times, the proposed wording for a referendum on children’s rights has been unanimously agreed by the all-party Oireachtas Committee on the Constitutional Amendment on Children, which will launch its final report tomorrow.

Previous entries on this blog have highlighted the long delay in the Committee producing its final report, potential shortcomings in the Committee’s approach and the failure of the Committee to proactively seek direct input from young people themselves.

The Final Report is very much to be welcomed – even if only in terms of drawing line under the protracted and apparently tortuous considerations of the Committee. However, the government’s failure to establish a definite date by which the draft wording will be put to the electorate (or even a date by which a decision will be taken as to whether or not the wording will be put to the electorate) is not.

The same Irish Times report quotes statements of Mary Hanafin on RTE’s The Week in Politics that:

We would anticipate with the election for the lord mayor of Dublin, the two byelections, in Donegal and Dublin South and possibly also at least one constitutional referendum … We have also promised in the programme for Government that there would be a constitutional referendum on a court of civil appeal. So all of those should probably take place, if they are to take place, around the same time and that certainly won’t be until the back end of the year. [Italics added]

She went on to make it clear that the government did not envisage that any referendum on the proposed amendment would take place before the autumn.

It is striking, however, that another participant on the programme, Alex White, TD – who is a member of the Oireachtas Committee on the Constitutional Amendment on Children – intervened to say that the Committee’s report would be launched “this Tuesday” (16 February) and so “it’ll be ready to move on”.

Given that the Committee has had over two years to work on its report, as well as the fact that it can be assumed that the government is familiar both with the Comittee’s discussions and the proposed wording due to the All-Party nature of the Committee, it seems inexcusable that there should be a significant delay in putting the wording to referendum. This is particularly so given the repeated statements on the part of the Government (for instance, in its Implementation Plan in Response to the Ryan Report) that a constitution on a children’s rights amendment would go ahead once the Committee’s work would be completed. In light of the delay in addressing the wholly inadequate framework of the protection of children’s rights under the Constitution on the part of the Committee and – indeed – the Government, it is crucial that the response to the Committee’s report be prompt and concrete.

Should the Civil Partnership Bill 2009 contain a ‘conscience clause’?

January 28, 2010 7 comments

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…