Passports, Industrial Action and Constitutional Rights

At a meeting of the Oireachtas Committee on Foreign Affairs today, Fine Gael’s Alan Shatter T.D. suggested that recent industrial action by public service workers in the passport office may be breaching constitutional rights.

The industrial action in question has caused a backlog of over 40,000 passport applications and citizens are currently experiencing long delays in acquiring their passports. As noted by Deputy Shatter, the right of Irish citizens to travel abroad and to obtain a passport (subject to meeting the relevant requirements) was established as constitutional in nature by the Irish courts in the 1970s. In State (M) v A.G. [1979] IR 73, it was held by the High Court that Irish citizens have an unenumerated constitutional right to a passport (with certain conditions applying and other restrictions of a legal nature operating).  That particular case dealt with s.40 of the Adoption Act, 1952 which forbade the removal of certain categories of children from the State and made no allowances for exceptions to that rule.  This was found to be a breach of the recognised constitutional rights.

Seven Questions for New Fine Gael

Yesterday, Fine Gael published their 101 page document, ‘New Politics’, setting out what they consider to be “the most ambitious programme for political reform since the 1930s’. For the non-constitutional scholars amongst our readership, 1937 saw the adoption of Bunreacht na hÉireann, the Constitution of Ireland that remains the only between-World Wars European constitution to still be in force today. As such, Fine Gael’s claims for their New Politics is a grand one. We have previewed the publication of this document (here, here, here, here and here) and will offer some thoughts over the next few days. The document clearly merits detailed engagement and as such, I won’t attempt a full analysis here. Rather, after the jump I will ask seven questions of New Fine Gael and their New Politics.

Constitutional Revolution 3.5: Fine Gael Debate Today

This afternoon, the Fine Gael National Conference will debate the party leadership’s proposals for political and constitutional reform in Ireland. The reforms, which we discussed previously (here, here and here) would include:

– the abolition of the Seanad;

– a new “list” system for selecting 15 TDs;

– new constitutional recognition given to four Dáil committees;

– reduction of the President’s term of office from seven years to five;

– the introduction of a public petition mechanism for the Dáil.

Expect to see lots on this in the press in the coming days and some more substantive analysis here at HRinI once we have the full Fine Gael proposals to hand.

Constitutional Revolution II: The Dangers of Piecemeal Reform

Last year Fiona asked if constitutional revolution in Ireland was nigh: Fine Gael were proposing several constitutional amendments; an amendment on Children’s Rights was in the works; and the Bill of Rights debate in Northern Ireland had reignited the question of an All-Ireland Charter of Rights. Now, the Children’s Rights amendment has been published (see Our Symposium) and the Bill of Rights debate continues but is mired in the malaise of British politics (see Colin Harvey here and myself here). Today Fine Gael announced the publication of a new document, New Politics, which calls for a ‘Constitution Day’ within one year of their taking office in Government Buildings to allow the public to consider five new constitutional amendments.

These are:

– the abolition of the Seanad;

– a new “list” system for selecting 15 TDs;

– new constitutional recognition given to four Dáil committees;

– reduction of the President’s term of office from seven years to five;

– the introduction of a public petition mechanism for the Dáil.

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.’

The Supreme Court, Equality, Golfing and ‘Need’

UPDATE: The full text of the judgment (4 opinions) is now available here. (h/t Vicky Conway)

The Irish Times reports today that  the Supreme Court has held that Portmarnock Golf Club is not a “discriminating” club under the Equal Status Act. Women are permitted to play at Portmarnock but may not become full members. By a majority of three to two, the Supreme Court upheld a 2005 High Court decision (Equality Authority v. Portmarnock Golf Club & Ors [2005] IEHC 235 (10 June 2005) that the club, while refusing to admit women as members, is not a “discriminating” club under the Act because it fell within exemption provisions in Section 9 of the Act. Section 9 provides that a club “shall not be considered to be a discriminating club…if its principal purpose is to cater only for the needs of persons of a particular gender..\[or] it refuses membership to other members”. There is an account of some of the argument in the Supreme Court here. The Times reports quotes from the judgments of Denham and Hardiman JJ (pictured at left)

The authority argued the club is a discriminatory club under the Act on grounds its “principal purpose” is to play golf, not to cater only for the “needs” of men. The club contended its principal purpose was to cater only for the golfing needs of men.

In his judgment allowing the appeal, Mr Justice Hardiman said the club argued it was a gentlemen’s golf club, a golf club for gentlemen. The authority said that could not be so within Section 9 because, in the authority’s view, the club provided facilities for the game of golf which was not a “need” of men.

The ordinary, natural and literal meaning of the word “needs” is that set out in the Oxford English Dictionary and it was broad enough to embrace social, cultural and sporting needs as well as more basic needs for things such as air, food and water, the judge said.

In his view, the authority’s construction of the term needs was “a narrow, outdated and unnatural one”.

Dissenting, Ms Justice Denham said she was of the view the principal purpose of Portmarnock golf club was golf and that it catered for the needs of men and women, not just men.

A spokesman for the Equality Authority said the authority welcomed the fact that the Supreme Court had now clarified the law and said the Oireachtas could now examine whether or not the Equal Status Act needed to be amended. Joanna McMinn of the Equality Rights Alliance said the law needed to be changed and the decision was a bad day for equality and a bad day for women. Commentaryto follow when the judgment is published in full. Back at the time of the High Court decision, the Equality Authority were closer to the mark:

The Judgement maintains an unsatisfactory status quo. A significant institution in our society can continue to exclude women from membership. It can continue to set a standard that runs counter to any aspirations we might have as a society for greater equality between women and men. This is unsatisfactory in a context of significant and persistent inequalities experienced by women in a broad range of sectors. We still hope that Portmarnock might consider their options and change their membership rules so as to establish a new and more acceptable standard in regard to gender equality

Update 2:

• Mr. Justice Geoghegan latched on to one of the stranger aspects of this body of law. “He described as “extraordinary” the fact, where a club is found to be discriminatory, the only sanction that may be imposed on it under the Act is withdrawal of its drinks licence (if it has one). If it chose to lose its licence, a club could continue to forever discriminate without penalty… This “tiptoeing” by the drafters had created real problems of interpretation of the Act.” The link also covers Mr. Justice Hardiman’s sharp criticisms of the Equality Authority.

Update 3:

Lots of coverage in Wednesday’s papers:

• Carol Coulter in the Irish Times says that ‘the unmentioned elephant in the court-room was the undefined, but undoubted, social and business advantages conferred by membership of a historically exclusive club, whose exclusivity was maintained by yesterday’s judgment.’ The Equality and Rights Alliance make the same point.
• The members of Portmarnock golf club talk about ordinariness and common sense here
• The Times also gives a summary of the dissenting judgments here while the Examiner has a pithy quote from Denham J. : “Portmarnock Golf Club is exactly what its name says – a golf club in Portmarnock,” she said.

http://www.irishtimes.com/newspaper/ireland/2009/1104/1224258028551.html

Kenny on the Mass Cards Case

David Kenny, PhD student at Trinity College Dublin School of Law has an article in today’s Irish Times charting the arguments made in the McNally Mass Cards case (Thomas McNally is pictured above) in the High Court. We mentioned the case here. According to Kenny, the central issues argued before the High Court were:

• Whether the special provision in s.99 was necessary to guard against fraudulent Mass cards, or whether the existing criminal law was adequate to this purpose.
• Whether s. 99 of the 2009 Act infringed the rights of the purchasers of Mr McNally’s cards to profess and practise their religion freely as guaranteed by article 44.2.1.   Mr. O’Donnell SC for the state, argued that, in this respect, Mr. McNally’s claim was based on the rights of a third party and should not be entertained.
• Whether s.99 drew an impermissible distinction on the grounds of religious status in contravention of article 44.2.3 by distinguishing bishops and provincials from other clerics in deciding who could approve an arrangement. Mr. O’Donnell SC argued that any distinction drawn between bishops and provincials and other clergy was justified in this context by reference to article 44.2.5, giving religious denominations autonomy over their own affairs, because the distinction was one made within the religion itself, not one imposed by the State.
• Whether it was  permissible for a statute to delegate state power to religious bodies. A central point of contention between Dr. Hogan SC for Mr. McNally and Mr. O’Donnell SC for the state turned on whether we can draw out the scope of Article 44 by analogy with certain principles of American constitutional law. Dr. Hogan sought to introduce the  American concept of  “excessive entanglement” of church and state to support his argument. He said that ‘[t]he Irish Constitution, though different in many respects to the US constitution, was in substance a secular document, and could not abide the State delegating control over this ‘loose licensing system’ for Mass cards to church officials.’  Mr. O’Donnell argued that the U.S. case law was irrelevant because there was a vast difference between the Jeffersonian “wall of separation” between church and state erected by the US Constitution, and the Irish Constitution, which in article 44.1 pledges that the State shall “respect and honour religion”.

Migrants and Child Citizens: Ireland and Greece

From the Guardian comes the news that George Papandreou’s newly elected Pasok (Socialist) government have begun to overhaul Greece’s much-criticised immigration policy (I blogged about the Greek connection to the Calais ‘Jungle’ affair here last month and you can read about Greece’s examination by UNCERD in August here). In particular, citizenship will be granted to the Greek-born children of migrants who have legally settled in Greece.  At present, the State does not provide such children either with a birth certificate or with a long-term residence permit. Since December, some such children have been able to apply for long-term residence. Prior to that change in the law, they were obliged to apply for a permit – on the same terms as a new migrant – upon reaching the age of 18. The Guardian reports:

“Absurd is too light a word to describe the lot of these kids,” said Petros Papaconstantinou, a prominent anti-racism spokesman. “Even if born in Greece, even if they attend Greek schools and speak only Greek, which invariably is the case, on paper they don’t exist at all.”

Without official documentation the children were often subject to abuse, arrest and deportation at the age of 18, he said. “There are children whose parents are from Africa, Asia and countries like Albania who are enrolled at schools across Greece but who have no papers whatsoever. In Europe this is unique.”

The Greek developments raise the spectre of the the family rights wing of Ireland’s immigration regime, the flagship initiative of which became the  Twenty-Seventh Amendment to the Irish Constitution – famous enough at this point, even to be considered in Seyla Benhabib and Judith Resnik’s new book.