I must admit to being not quite sad to see the Minister lose his seat and his party in the recent general election. By all counts he is a quite personable individual with a great sense of humour. I do think, however, that civil liberties and human rights are well quit if him. The gratuitous introduction of a draconian criminal justice bill just prior to the election in order to gain popular support was beneath the dignity of one who once was one of the foremost criminal lawyers in the State. If you check you will even see that he signed the Commencement Order for large parts of the now Act, during the election campaign.
I feel sorry for him as an individual and the sense of rejection he must feel. Perhaps he might reflect on why he was rejected.
Tuesday 29 May 2007
Ed Horgan, Shannon and the Irish Human Rights Commission
I see in Indymedia that Ed Horgan's request for an enquiry into the use of Shannon by the US military and the CIA has been refused by the Irish Human Rights Commission.
I wish at the outset of this post to acknowledge the great work of Mr. Horgan in relation to his campaigning on the issue of the US military presence in Shannon and on the possible illegal transfer through Shannon of persons to destinations unknown where they may be at risk of torture or other inhuman or degrading treatment (Rendition).
However I must take issue with Mr. Horgan’s call for the resignation of the Commissioners of the Irish Human Rights Commission (the Commission). I do so for a number of reasons.
Firstly Mr. Horgan simply ignores the huge work done by the Commission since December 2005 when they made their initial submission to the Government calling for a system of inspections of suspected planes at Irish Airports as it was their view that not doing so in the face of credible suspicions was not compliant with Irelands obligations under international law, particularly the European Convention on Human Rights (ECHR) and the UN Convention against Torture (CAT). This intervention created massive publicity around the issue with, on one day alone, the Commissions intervention being covered on the front page of the Irish Times, an interview with Professor Gerard Quinn of the Commission on Morning Ireland and being carried as a lead item on the 1,6 and 0 o’clock news. The Commission’ work on the issue gained international attention with the intervention of Mr. Alvaro Gil Robles, the Commissioner for Human Rights at the Council of Europe in early 2006. This intervention was done in support of the Commission. The Commission also took the opportunity during 2006 to meet with the United Nations High Commissioner for Human Rights, Ms. Louise Arbour, and raise the issue with her. It might be remembered that Ms. Arbour issued a statement subsequently in support of the work of the Commission. The work of the Commission culminated, perhaps, with its appearance before the special temporary committee of the European Parliament on the subject of rendition. This appearance was at the Parliament’s invitation precisely as a result of the prominence of the Commission’s work in relation to the rendition issue. This was the first time ever any National Human Rights Commission was invited to appear before the European Parliament. The President of the Commission, Dr. Maurice Manning and one of its Commissioners, Suzanne Egan, took the opportunity to inform the Committee in no uncertain terms that in the Commissions view the Irish Government was not fulfilling their international obligations. All of the above interventions received substantial media coverage both at home and abroad thus raising the profile of the issue in a way never before. Readers might also search the Oireachtas website for the many discussions which took place in the Dail and Seanad as a result of the Commission’s interventions.
Secondly, however lawyerly and, it might be argued, insensitive the letter received from the Commission was, what exactly did Mr. Horgan expect the Commission to do? Did he perhaps expect them to conduct an enquiry lasting months and months, spend thousands and thousands of euro paying lawyers to so do and then, perhaps in a years time, come to exactly the same conclusion it already has and tell the Government AGAIN that it is not fulfilling it’s international human rights obligations? Really Mr. Horgan.
The second issue is in relation to Mr. Horgan’s annoyance in the Commission’s refusal to conduct an enquiry into the general use of Shannon by the US military thus facilitating an “illegal war”. Simply put, the present troop presence in Iraq is on foot of a United Nations Resolution’s which was agreed post invasion for the purposes of rebuilding. All the resolutions are themselves are freely available on the UN Website (word of caution, the site is extremely difficult to navigate).
Therefore the Irish State presently facilitating the US military in this way is not only legal but in furtherance of a United Nations Resolution.
If I am correct, Mr. Horgan himself went to the Irish Supreme Court ( Horgan v An Taoiseach, Minister for Foreign Affairs [2003] 2 IR 468) in an effort to stop the State facilitating the US in this way. Also argued in the Supreme Court was the use of the US of Irish Airports prior to the invasion of Iraq when the disputed original resolution was in force (the one the American’s and English said was authority to invade and others, including Ireland, said was not). Having considered the matter the Supreme Court decided that the States actions were legal and continue to be legal with regard to the Irish Constitution and International Law generally.
Mr. Horgan, the Irish Human Rights Commission is not an NGO, or even a Super NGO. It is a Statutory Body. Its only regard is to the legality of a situation given the Constitution and International Human Rights Treaties to which the State is a party. This is what they have done in this instance. They are not there to decide “right” from “wrong” in a moral sense, just simply dry legalities. If it was to behave in any other way it would surrender it’s influence with the State, which would be of detriment to all of us.
I am quite sure that some members of the Commission individually find the use of Shannon morally reprehensible but they are not Commissioners to moralise. Mr. Horgan should be grateful that the issue of rendition has received more publicity than heretofore thought possible rather than heaping scorn on the likes of Michael Farrell, William Binchy, Alice Leahy, Gerard Quinn et al, who, it cannot be argued, are not slow in criticising the State without fear or favour whenever required.
I wish at the outset of this post to acknowledge the great work of Mr. Horgan in relation to his campaigning on the issue of the US military presence in Shannon and on the possible illegal transfer through Shannon of persons to destinations unknown where they may be at risk of torture or other inhuman or degrading treatment (Rendition).
However I must take issue with Mr. Horgan’s call for the resignation of the Commissioners of the Irish Human Rights Commission (the Commission). I do so for a number of reasons.
Firstly Mr. Horgan simply ignores the huge work done by the Commission since December 2005 when they made their initial submission to the Government calling for a system of inspections of suspected planes at Irish Airports as it was their view that not doing so in the face of credible suspicions was not compliant with Irelands obligations under international law, particularly the European Convention on Human Rights (ECHR) and the UN Convention against Torture (CAT). This intervention created massive publicity around the issue with, on one day alone, the Commissions intervention being covered on the front page of the Irish Times, an interview with Professor Gerard Quinn of the Commission on Morning Ireland and being carried as a lead item on the 1,6 and 0 o’clock news. The Commission’ work on the issue gained international attention with the intervention of Mr. Alvaro Gil Robles, the Commissioner for Human Rights at the Council of Europe in early 2006. This intervention was done in support of the Commission. The Commission also took the opportunity during 2006 to meet with the United Nations High Commissioner for Human Rights, Ms. Louise Arbour, and raise the issue with her. It might be remembered that Ms. Arbour issued a statement subsequently in support of the work of the Commission. The work of the Commission culminated, perhaps, with its appearance before the special temporary committee of the European Parliament on the subject of rendition. This appearance was at the Parliament’s invitation precisely as a result of the prominence of the Commission’s work in relation to the rendition issue. This was the first time ever any National Human Rights Commission was invited to appear before the European Parliament. The President of the Commission, Dr. Maurice Manning and one of its Commissioners, Suzanne Egan, took the opportunity to inform the Committee in no uncertain terms that in the Commissions view the Irish Government was not fulfilling their international obligations. All of the above interventions received substantial media coverage both at home and abroad thus raising the profile of the issue in a way never before. Readers might also search the Oireachtas website for the many discussions which took place in the Dail and Seanad as a result of the Commission’s interventions.
Secondly, however lawyerly and, it might be argued, insensitive the letter received from the Commission was, what exactly did Mr. Horgan expect the Commission to do? Did he perhaps expect them to conduct an enquiry lasting months and months, spend thousands and thousands of euro paying lawyers to so do and then, perhaps in a years time, come to exactly the same conclusion it already has and tell the Government AGAIN that it is not fulfilling it’s international human rights obligations? Really Mr. Horgan.
The second issue is in relation to Mr. Horgan’s annoyance in the Commission’s refusal to conduct an enquiry into the general use of Shannon by the US military thus facilitating an “illegal war”. Simply put, the present troop presence in Iraq is on foot of a United Nations Resolution’s which was agreed post invasion for the purposes of rebuilding. All the resolutions are themselves are freely available on the UN Website (word of caution, the site is extremely difficult to navigate).
Therefore the Irish State presently facilitating the US military in this way is not only legal but in furtherance of a United Nations Resolution.
If I am correct, Mr. Horgan himself went to the Irish Supreme Court ( Horgan v An Taoiseach, Minister for Foreign Affairs [2003] 2 IR 468) in an effort to stop the State facilitating the US in this way. Also argued in the Supreme Court was the use of the US of Irish Airports prior to the invasion of Iraq when the disputed original resolution was in force (the one the American’s and English said was authority to invade and others, including Ireland, said was not). Having considered the matter the Supreme Court decided that the States actions were legal and continue to be legal with regard to the Irish Constitution and International Law generally.
Mr. Horgan, the Irish Human Rights Commission is not an NGO, or even a Super NGO. It is a Statutory Body. Its only regard is to the legality of a situation given the Constitution and International Human Rights Treaties to which the State is a party. This is what they have done in this instance. They are not there to decide “right” from “wrong” in a moral sense, just simply dry legalities. If it was to behave in any other way it would surrender it’s influence with the State, which would be of detriment to all of us.
I am quite sure that some members of the Commission individually find the use of Shannon morally reprehensible but they are not Commissioners to moralise. Mr. Horgan should be grateful that the issue of rendition has received more publicity than heretofore thought possible rather than heaping scorn on the likes of Michael Farrell, William Binchy, Alice Leahy, Gerard Quinn et al, who, it cannot be argued, are not slow in criticising the State without fear or favour whenever required.
Monday 2 April 2007
Disability
There is an interesting post on the website of the Irish Human Rights Commission and in particular on it's what's new section (http://www.ihrc.ie/) dated the 30th of March which escaped the press. It would seem that a lot goes on in IHRC which does not get to grace the pages of our papers!!
It would appear that some bureaucratic bull delayed the appointment and payment, by the Legal Aid Board ( is a State Agency providing Civil Legal Aid to person of modest means, which effectively means, given the level of legal costs, about 20,000 persons per annum, mostly family law matters) , of a guardian ad litem to a person who suffered a disability and whose minor child (ie under 18) was the subject of a proposed care order by the local health authority. The gist being that the person with a disability was not a competent parent given their disability.
A guardian ad litem is a person who would represent the best interests of a person with diminished or no capacity before a court in legal proceedings. In any event the case came before the High Court for various reasons, including the fact that the Legal Aid Board indicated that they would be acting in excess of their functions under their legislation by appointing and paying for such a service for the person with a disability.
In the High Court when the matter came on for mention the presiding judge, McMenamin J, invited the IHRC to become involved as an amicus curiae, i.e. a friend of the court. The IHRC made submissions supporting the plaintiff in the assertion that they were entitled to a guardian ad litem. They based their submissions, which you can find on their site, on the Constitution, the ECHR, the UN Convention on the Rights of the Child and, interestingly, the recently adopted UN Convention on the Rights of Person with Disabilities.
In the event the matter settled before being decided and the Legal Aid Board agreed to put in place a scheme to deal with providing guardians in such circumstances. Meanwhile, the IHRC indicated to the court that the settlement provided in the instant case fulfilled the State's obligations under the Constitution and the various international Human Rights Treaties which they had relied on but reserved their position as to whether or not the scheme to be put in place by the Legal Aid Board would satisfy the State's obligations going forward.
Nice to see the State, having considered the plaintiff's submissions and those of the IHRC, decided that they were correct and remedied the matter prior to hearing. Pity the plaintiffs had to go to that length though!
PS Anyone wanting a one-sided rant should read Waters column in the Irish Times today. It appears that any proposal that does not conform to Waters own in relation to father's rights is not to be tolerated.
It would appear that some bureaucratic bull delayed the appointment and payment, by the Legal Aid Board ( is a State Agency providing Civil Legal Aid to person of modest means, which effectively means, given the level of legal costs, about 20,000 persons per annum, mostly family law matters) , of a guardian ad litem to a person who suffered a disability and whose minor child (ie under 18) was the subject of a proposed care order by the local health authority. The gist being that the person with a disability was not a competent parent given their disability.
A guardian ad litem is a person who would represent the best interests of a person with diminished or no capacity before a court in legal proceedings. In any event the case came before the High Court for various reasons, including the fact that the Legal Aid Board indicated that they would be acting in excess of their functions under their legislation by appointing and paying for such a service for the person with a disability.
In the High Court when the matter came on for mention the presiding judge, McMenamin J, invited the IHRC to become involved as an amicus curiae, i.e. a friend of the court. The IHRC made submissions supporting the plaintiff in the assertion that they were entitled to a guardian ad litem. They based their submissions, which you can find on their site, on the Constitution, the ECHR, the UN Convention on the Rights of the Child and, interestingly, the recently adopted UN Convention on the Rights of Person with Disabilities.
In the event the matter settled before being decided and the Legal Aid Board agreed to put in place a scheme to deal with providing guardians in such circumstances. Meanwhile, the IHRC indicated to the court that the settlement provided in the instant case fulfilled the State's obligations under the Constitution and the various international Human Rights Treaties which they had relied on but reserved their position as to whether or not the scheme to be put in place by the Legal Aid Board would satisfy the State's obligations going forward.
Nice to see the State, having considered the plaintiff's submissions and those of the IHRC, decided that they were correct and remedied the matter prior to hearing. Pity the plaintiffs had to go to that length though!
PS Anyone wanting a one-sided rant should read Waters column in the Irish Times today. It appears that any proposal that does not conform to Waters own in relation to father's rights is not to be tolerated.
Thursday 15 March 2007
Mandatory Sentencing
Dear Reader,
As anyone with sensory perception will have seen over the last few days that there is, yet again, a gathering crowd baying for mandatory sentencing for, according to May Sexton TD at least, pretty much everything. As a post script it might be said by some that the only reason Ms. Sexton in jumping on the band wagon is that she is in grave danger of loosing her seat in the forthcoming general election and will jump on any wagon at this stage, band or otherwise.
For those of you who have not seen any news media over the last few days all this started when Mr. Justice Carney, in the Central Criminal Court, handed down a suspended sentence to a young man who broke into a young girl of his acquaintances house, and proceeded to rape her. Agreed, a suspended sentence for any rape is inappropriate save in the most exceptional circumstances. Indeed the Court of Criminal Appeal have stated, most unusually, that in the case of a conviction for rape, the commencement point for the sentencing judge should be a substantial custodial sentence and thereafter the judge may take such mitigating or aggravating circumstances as are present into account. It further said that only in the most exceptional circumstances should the sentencing judge consider a suspended sentence.
The background to this sentence being handed down would seem to be the inability of Mr. Justice Carney in dealing with criticism leveled at him by the Court of Criminal Appeal ( people may remember criticism leveled at him recently by Mr. Justice Hardiman when presiding in the Court of Criminal appeal) when one of his sentences is appealed on grounds of leniency(by the DPP) or severity(by the convicted person). In the judges sentencing in the present case he referred to a recent case of his, which was appealed on grounds of severity, where he had indicated that although the person convicted of rape had been under the influence of alcohol, had no memory of the events, did not break into the persons house (she was known to him and it appears they were at a social gathering, there would also appear to have been some question of mistaken identity on both parts, at least in the initial stages), immediately expressed remorse, completely co-operated with the Garda investigation and pleaded guilty to the charge at the first available moment, Mr. Justice Carney indicated in his sentencing of this man that it was not open to him at all to impose a suspended sentence. The Court of Criminal Appeal disagreed with this assessment of the law and indicated that in "Exceptional Circumstances" a sentencing judge might consider a suspended sentence.
What appears to have happened in this instance is that Mr. Justice Carney in sentencing the present case, opted to have a pot shot at the Court of Criminal Appeal by handing down a suspended sentence where the circumstances were completely different as between the two cases. The present case involved breaking into the dwelling house of the person raped, the use of a substantial amount of force and the refusal of the accused to face up to his actions and a resultant plea of not guilty thus forcing the person raped to give evidence on oath at the trial, which much be an appalling experience for the woman concerned.
His sentencing in this matter is truly disgraceful in that the matter will be most probably be appealed on grounds of leniency and it is not unlikely that a custodial sentence will be substituted for the suspended sentence. Does he realise that he is playing with peoples lives? Does he realise that there will be substantial further exchequer expenditure in bringing this appeal? Does he realise the further hurt he has caused the innocent victim!
This nicely brings me back to my original issue, mandatory sentencing. It is a truism that criminals are not worried about how much jail time they will serve, they are worried about being caught. Mandatory sentences for rape will not procure more convictions for rape.
In practical terms what will happen when someone is charged with rape and are informed that there is a mandatory sentence for the offence no matter which way they plead, guilty or not guilty, they will logically,and probably will be so advised, plead not guilty. You would be a fool to do otherwise!
There will be no more guilty pleas to rape!!!!Can anyone tell me how many guilty please to murder that there are? They are nearly unheard of!
Is it not obvious that in such circumstances that you take your chances with a jury and let your legal team test the evidence? Evidence is sometimes unintentionally destroyed, adulterated etc, the witness evidence may be very poor and a host of other technical difficulties may be encountered in the course of a criminal trial. The actual result of a mandatory sentence for such a crime will, in fact, be more acquittals and more rapists on the streets, not less!
I really do wish the support groups, who do wonderful work, would get their heads around this. Yes, rape should be deterred. Mandatory sentences are not the way to do it.
Mr. Justice Carney should be reminded of his proper role in the matter, which is to sentence according to the law without fear or favour and keep his personal vendetta with the Court of Criminal Appeal for the St. Stephen's Green Club, or perhaps the Shelbourne, now that they have spanking new doors!!
As anyone with sensory perception will have seen over the last few days that there is, yet again, a gathering crowd baying for mandatory sentencing for, according to May Sexton TD at least, pretty much everything. As a post script it might be said by some that the only reason Ms. Sexton in jumping on the band wagon is that she is in grave danger of loosing her seat in the forthcoming general election and will jump on any wagon at this stage, band or otherwise.
For those of you who have not seen any news media over the last few days all this started when Mr. Justice Carney, in the Central Criminal Court, handed down a suspended sentence to a young man who broke into a young girl of his acquaintances house, and proceeded to rape her. Agreed, a suspended sentence for any rape is inappropriate save in the most exceptional circumstances. Indeed the Court of Criminal Appeal have stated, most unusually, that in the case of a conviction for rape, the commencement point for the sentencing judge should be a substantial custodial sentence and thereafter the judge may take such mitigating or aggravating circumstances as are present into account. It further said that only in the most exceptional circumstances should the sentencing judge consider a suspended sentence.
The background to this sentence being handed down would seem to be the inability of Mr. Justice Carney in dealing with criticism leveled at him by the Court of Criminal Appeal ( people may remember criticism leveled at him recently by Mr. Justice Hardiman when presiding in the Court of Criminal appeal) when one of his sentences is appealed on grounds of leniency(by the DPP) or severity(by the convicted person). In the judges sentencing in the present case he referred to a recent case of his, which was appealed on grounds of severity, where he had indicated that although the person convicted of rape had been under the influence of alcohol, had no memory of the events, did not break into the persons house (she was known to him and it appears they were at a social gathering, there would also appear to have been some question of mistaken identity on both parts, at least in the initial stages), immediately expressed remorse, completely co-operated with the Garda investigation and pleaded guilty to the charge at the first available moment, Mr. Justice Carney indicated in his sentencing of this man that it was not open to him at all to impose a suspended sentence. The Court of Criminal Appeal disagreed with this assessment of the law and indicated that in "Exceptional Circumstances" a sentencing judge might consider a suspended sentence.
What appears to have happened in this instance is that Mr. Justice Carney in sentencing the present case, opted to have a pot shot at the Court of Criminal Appeal by handing down a suspended sentence where the circumstances were completely different as between the two cases. The present case involved breaking into the dwelling house of the person raped, the use of a substantial amount of force and the refusal of the accused to face up to his actions and a resultant plea of not guilty thus forcing the person raped to give evidence on oath at the trial, which much be an appalling experience for the woman concerned.
His sentencing in this matter is truly disgraceful in that the matter will be most probably be appealed on grounds of leniency and it is not unlikely that a custodial sentence will be substituted for the suspended sentence. Does he realise that he is playing with peoples lives? Does he realise that there will be substantial further exchequer expenditure in bringing this appeal? Does he realise the further hurt he has caused the innocent victim!
This nicely brings me back to my original issue, mandatory sentencing. It is a truism that criminals are not worried about how much jail time they will serve, they are worried about being caught. Mandatory sentences for rape will not procure more convictions for rape.
In practical terms what will happen when someone is charged with rape and are informed that there is a mandatory sentence for the offence no matter which way they plead, guilty or not guilty, they will logically,and probably will be so advised, plead not guilty. You would be a fool to do otherwise!
There will be no more guilty pleas to rape!!!!Can anyone tell me how many guilty please to murder that there are? They are nearly unheard of!
Is it not obvious that in such circumstances that you take your chances with a jury and let your legal team test the evidence? Evidence is sometimes unintentionally destroyed, adulterated etc, the witness evidence may be very poor and a host of other technical difficulties may be encountered in the course of a criminal trial. The actual result of a mandatory sentence for such a crime will, in fact, be more acquittals and more rapists on the streets, not less!
I really do wish the support groups, who do wonderful work, would get their heads around this. Yes, rape should be deterred. Mandatory sentences are not the way to do it.
Mr. Justice Carney should be reminded of his proper role in the matter, which is to sentence according to the law without fear or favour and keep his personal vendetta with the Court of Criminal Appeal for the St. Stephen's Green Club, or perhaps the Shelbourne, now that they have spanking new doors!!
Friday 9 March 2007
Not a Lot
Is it me or is it just a boring day today?
Worst hair award goes to Ms. Kelly Noble (pictured on page 4 of today's Irish Times) who was making her daily appearance at the Central Criminal Court where she is accused of the willful murder of Emma McLaughlin. She would appear to be one classy bird all right!!!!!
Most idiotic headline today also goes to the Irish Times where on page 5 you will see:
"Sharp increase in cocaine use a worrying trend"
Really?Worrying? You do surprise me!!!!
Worst hair award goes to Ms. Kelly Noble (pictured on page 4 of today's Irish Times) who was making her daily appearance at the Central Criminal Court where she is accused of the willful murder of Emma McLaughlin. She would appear to be one classy bird all right!!!!!
Most idiotic headline today also goes to the Irish Times where on page 5 you will see:
"Sharp increase in cocaine use a worrying trend"
Really?Worrying? You do surprise me!!!!
Wednesday 7 March 2007
International Women's Day
Has anyone else read the election manifesto launched today by the Women's Council of Ireland? It was launched on the eve of International Women's Day (which is celebrated tomorrow, and is a UN sponsored global event day held annually). Now, don't get me wrong, the thrust of their arguments I agree with. I am all for gender equality, and the manifesto is good, espousing gender equality generally and particularly equal pay, sharing of child rearing etc, but one of the measures they want implemented is, now wait for it, THE EQUAL SHARING OF HOUSEWORK!!!!!
Now,this launch received a fair share of national publicity today, being covered by the main media, and I am quite sure will be covered by the national press tomorrow.
In such circumstances surely surely surely there is an issue of more importance to women in Ireland today?
I can see the sense in the sharing of child rearing and the logical suggestion, given that view, that there should be paid parental leave, for both parents, but what State intervention will induce the sharing of housework? Is there to be established a new statutory body called the Housework Equality Commission? Will they employ inspectors to spot check peoples private dwellings so as to ascertain who is doing the ironing, and if, good grief, it should transpire that the poor woman is doing it, do they get an order from the courts to ensure that the man (and I am presuming, correct me if I'm wrong here, that the presumption in their manifesto is that the one not doing their fair share, for whatever reason, is the man - obviously Ann Louise and Katherine never entered their heads!) preforms a commensurate measure of hoovering so as to equate the sexes??
Woolyheaded claptrap!!
Now,this launch received a fair share of national publicity today, being covered by the main media, and I am quite sure will be covered by the national press tomorrow.
In such circumstances surely surely surely there is an issue of more importance to women in Ireland today?
I can see the sense in the sharing of child rearing and the logical suggestion, given that view, that there should be paid parental leave, for both parents, but what State intervention will induce the sharing of housework? Is there to be established a new statutory body called the Housework Equality Commission? Will they employ inspectors to spot check peoples private dwellings so as to ascertain who is doing the ironing, and if, good grief, it should transpire that the poor woman is doing it, do they get an order from the courts to ensure that the man (and I am presuming, correct me if I'm wrong here, that the presumption in their manifesto is that the one not doing their fair share, for whatever reason, is the man - obviously Ann Louise and Katherine never entered their heads!) preforms a commensurate measure of hoovering so as to equate the sexes??
Woolyheaded claptrap!!
Friday 2 March 2007
McDowell in Today's Irish Times
This is my first post on my new blog!! I have been searching for a while for a blog which specifically covers human rights issues in Ireland, from a practical and not too legal prospective, to no avail, so I decided to create one! It does not suggest any expertise and opinions expressed herein are my own. Any errors or omissions are my also my own.
Here Goes!
Having just read the Minister for Justice's opinion piece in today's Irish Times I must say that, for a change, I completely agree with him. Wow, that's a first(almost) and kind of hard to write!! I will obviously have to justify that agreement and would do so in the following manner:
McDowell takes the time today to analyse and rubbish the recently defeated Labour Party Bill on Civil Unions. The Bill, which was recently defeated in the Dail, was an attempt to legislate for what are also known as civil partnerships. However welcome such legislation would be, the Bill, as initiated by the Labour Party, appeared to limit such recognition to same sex couples in a sexual relationship. What the Tanaiste/Minister is proposing in forthcoming legislation is rather a civil partnership scheme what would confer rights and responsibilities ( if you read a lot of what the Tanaiste/Minister writes you will note that he nearly always follows "rights"with a corresponding "responsibilities") on same or opposite sex relationships and does not limit those relationships to sexual ones, rather it proposes any relationship that is interdependent. That would seem far preferable and certainly more indicative of a pluralist society. I did think that the Labour Party were good on that kind of thing but perhaps the wish to attract the "Pink" vote in the run up to a general election was too good to pass up. They obviously also knew that the inevitable voting down of their Bill by the Government would create another avenue for the Irish Times reading South Dublin chattering classes to have a go at McDowell without, as usual, being in full possession of the facts or, for that matter, understanding that it is a far more complicated issue than the poor legislative drafting of the Labour Party would have them think.
It is also worth reporting here that the report, commissioned by the Irish Human Rights Commission and published last year, namely "The Rights of De Facto Couples" http://www.ihrc.ie/documents/article.asp?NID=168&NCID=5&T=N&Print= , indicates that the Government are NOT obliged by virtue of the State being party to any international human rights agreement and, in particular, the European Convention on Human Rights and Fundamental Freedoms, to amend the Constitution to provide for same sex marriage nor is it obliged to provide in statute for a civil partnership scheme. Rather what it says is that there are discreet pieces of legislation that require amendment to bring them into conformity with the European Convention on Human Rights and that a better way to achieve this is by way of an over-arching statute rather than do it piece-meal. It also indicates that it would be preferable to underpin such changes by Constitutional amendment but, again, it is not necessary to do so in order to be in conformity with our obligations under international human rights law.
Secondly, the Minister takes issue with the constitutionality of the proposed Labour party Bill in that it would propose introducing a statutory scheme that would place "civil partnerships" on the same footing as the constitutional "marriage" albeit on a merely statutory footing. The point being that, no matter how outmoded or passe it might seem to you or me, the Irish Constitution does give primacy to the institution of marriage and stipulates that the State must uphold and promote it as such. The Minister's point, which is well taken, is that such a statutory scheme would undermine the constitutional definition of marriage by affording all the rights presently afforded to "married" couples to those who are not "married". The Minister is buttressed in this opinion by the above report commissioned by the Irish Human Rights Commission. This publication , commissioned by an organisation which has a proud history of taking the Minister and Government to task on a wide range of issues (think rendition in particular) notes that
"the precedents in place suggest that even minimal attempts to equate the position of heterosexual de facto couples with married partners are unconstitutional."
The point is also well made that the Zappone/Gilligan case is presently before the Supreme Court and that any attempt to legislate prior to judgment being delivered in that case would be premature. Readers will remember that when judgment was delivered in the High Court by Ms. Justice Elizabeth Dunne, she quite strongly indicated that marriage was, as constitutionally understood, limited to marriage contracted between a man and a woman. Unfortunate but true. If the Labour Party honestly think that will be overturned by the Supreme Court I really do think that they need their heads read. In circumstances where the traditional definition is upheld by the Supreme Court than obviously any legislation conferring the same rights on same sex couples (or for that matter on anyone who is not "married" as constitutionally understood) as those enjoyed by opposite sex "married" couples would undermine the constitutional "marriage" and therefore be unconstitutional!! Simple really!
In conclusion I would have hoped that the Labour Party, who, don't forget, introduced our equality legislation (thank you Mervyn Taylor), would avoid grandstanding and scoring political points but rather concentrate on producing reasoned legislation which would be of benefit to all the people.
That's my rant for the day. Please please God,let me never have to agree with Herr McDowell again!!
Here Goes!
Having just read the Minister for Justice's opinion piece in today's Irish Times I must say that, for a change, I completely agree with him. Wow, that's a first(almost) and kind of hard to write!! I will obviously have to justify that agreement and would do so in the following manner:
McDowell takes the time today to analyse and rubbish the recently defeated Labour Party Bill on Civil Unions. The Bill, which was recently defeated in the Dail, was an attempt to legislate for what are also known as civil partnerships. However welcome such legislation would be, the Bill, as initiated by the Labour Party, appeared to limit such recognition to same sex couples in a sexual relationship. What the Tanaiste/Minister is proposing in forthcoming legislation is rather a civil partnership scheme what would confer rights and responsibilities ( if you read a lot of what the Tanaiste/Minister writes you will note that he nearly always follows "rights"with a corresponding "responsibilities") on same or opposite sex relationships and does not limit those relationships to sexual ones, rather it proposes any relationship that is interdependent. That would seem far preferable and certainly more indicative of a pluralist society. I did think that the Labour Party were good on that kind of thing but perhaps the wish to attract the "Pink" vote in the run up to a general election was too good to pass up. They obviously also knew that the inevitable voting down of their Bill by the Government would create another avenue for the Irish Times reading South Dublin chattering classes to have a go at McDowell without, as usual, being in full possession of the facts or, for that matter, understanding that it is a far more complicated issue than the poor legislative drafting of the Labour Party would have them think.
It is also worth reporting here that the report, commissioned by the Irish Human Rights Commission and published last year, namely "The Rights of De Facto Couples" http://www.ihrc.ie/documents/article.asp?NID=168&NCID=5&T=N&Print= , indicates that the Government are NOT obliged by virtue of the State being party to any international human rights agreement and, in particular, the European Convention on Human Rights and Fundamental Freedoms, to amend the Constitution to provide for same sex marriage nor is it obliged to provide in statute for a civil partnership scheme. Rather what it says is that there are discreet pieces of legislation that require amendment to bring them into conformity with the European Convention on Human Rights and that a better way to achieve this is by way of an over-arching statute rather than do it piece-meal. It also indicates that it would be preferable to underpin such changes by Constitutional amendment but, again, it is not necessary to do so in order to be in conformity with our obligations under international human rights law.
Secondly, the Minister takes issue with the constitutionality of the proposed Labour party Bill in that it would propose introducing a statutory scheme that would place "civil partnerships" on the same footing as the constitutional "marriage" albeit on a merely statutory footing. The point being that, no matter how outmoded or passe it might seem to you or me, the Irish Constitution does give primacy to the institution of marriage and stipulates that the State must uphold and promote it as such. The Minister's point, which is well taken, is that such a statutory scheme would undermine the constitutional definition of marriage by affording all the rights presently afforded to "married" couples to those who are not "married". The Minister is buttressed in this opinion by the above report commissioned by the Irish Human Rights Commission. This publication , commissioned by an organisation which has a proud history of taking the Minister and Government to task on a wide range of issues (think rendition in particular) notes that
"the precedents in place suggest that even minimal attempts to equate the position of heterosexual de facto couples with married partners are unconstitutional."
The point is also well made that the Zappone/Gilligan case is presently before the Supreme Court and that any attempt to legislate prior to judgment being delivered in that case would be premature. Readers will remember that when judgment was delivered in the High Court by Ms. Justice Elizabeth Dunne, she quite strongly indicated that marriage was, as constitutionally understood, limited to marriage contracted between a man and a woman. Unfortunate but true. If the Labour Party honestly think that will be overturned by the Supreme Court I really do think that they need their heads read. In circumstances where the traditional definition is upheld by the Supreme Court than obviously any legislation conferring the same rights on same sex couples (or for that matter on anyone who is not "married" as constitutionally understood) as those enjoyed by opposite sex "married" couples would undermine the constitutional "marriage" and therefore be unconstitutional!! Simple really!
In conclusion I would have hoped that the Labour Party, who, don't forget, introduced our equality legislation (thank you Mervyn Taylor), would avoid grandstanding and scoring political points but rather concentrate on producing reasoned legislation which would be of benefit to all the people.
That's my rant for the day. Please please God,let me never have to agree with Herr McDowell again!!
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