The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least. Continue reading “The Right to Legal Advice in the Garda Station: DPP v Doyle”
We are pleased to welcome this guest post by Conor Talbot, PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin (contact firstname.lastname@example.org).
Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated. The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women. Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.
“The third is freedom from want . . . everywhere in the world.”
– Franklin Delano Roosevelt
The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom of speech and freedom of religion were two classic limits on the power of government – what we often call “negative” rights, or civil and political rights. Such rights were at the core of the American constitutional order, enshrined in the Bill of Rights.
As Roosevelt continued his speech, he identified two additional Freedoms of a very different character. The third of the Four Freedoms was “freedom from want – which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants – everywhere in the world.” This was followed by freedom from fear. Unlike the first two Freedoms, these did not limit government interference with the individual; rather, they contemplated an affirmative government obligation to deliver these societal necessities to its citizens. Continue reading “Brian Farrell on Freedom from Want”
“The second is freedom of every person to worship God in his own way – everywhere in the world”.
– Franklin Delano Roosevelt.
I am pleased to contribute a short essay to the University of Iowa Center of Human Rights’ celebration of the ‘Four Freedoms’ speech, delivered by United States President Roosevelt in January 1941. Those working in this field are well aware that the speech itself and the context of the Second World War in which it was made gave significant impetus to important human rights developments, including the emergence of an international system aimed at protecting and promoting human rights. That system continues to evolve, to elaborate on the substance and meaning of human rights, and to identify where responsibility lies for ensuring respect for human rights. Continue reading “Darcy on Freedom of Religion”
“The first is freedom of speech and expression – everywhere in the world.”
– Franklin Delano Roosevelt.
Should we think of the four freedoms in terms of a hierarchy? If so, then freedom of speech and expression comes top, as the first enumerated in Roosevelt’s speech, although the speech itself gives no indication beyond the numbers that some of the freedoms are of more importance than others. In contemporary international human rights law, the United Nations emphasises that “[a]ll human rights are universal, indivisible and interdependent and interrelated”, meaning that there is no ranking. For many however, freedom of speech and expression is a ‘gateway right’ essential to the realisation of all other rights. In other words, it is more important than many other rights for it underscores the conditions required for the realisation of a just domestic and world order essential to the articulation and implementation of global rights standards. Thus the 1789 French Declaration of the Rights of Man and of the Citizen, a precursor of the contemporary documents, described free communication of thoughts and opinions as “one of the most precious rights” (Article 11). Continue reading “Keane on Freedom of Speech and Expression”
We are very pleased to republish a series of short essays relating to the ‘Four Freedoms’ Statue of the Union by Roosevelt in January 1941. The essays were originally published by the University of Iowa Centre for Human Rights. Here they are introduced by Brian Farrell, the Centre’s associate director.
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January 6, 2016, marks the seventy-fifth anniversary of a significant milestone in the recognition and protection of human rights. On January 6, 1941, with war raging in Europe and the Pacific, President Franklin Delano Roosevelt delivered his State of the Union address to Congress. Although the United States was not yet fighting in the Second World War, Roosevelt argued against isolationism, warning that “the future and safety of our country and of our democracy are overwhelmingly involved in events far beyond our borders.” He went on to discuss the country’s policy of national defense, support for other democratic nations, and a just peace. Continue reading “Celebrating Roosevelt’s Four Freedoms”
General Election 2016 has, unsurprisingly, been dominated by the economy. However, an unlikely high-profile issue is that of the existence of the Special Criminal Court. Sinn Féin has thrust this issue into the lime-light with a pledge to repeal it in its manifesto. This has promptly led to attacks from other political parties, drawing attention to Sinn Féin’s connections with the IRA, and particularly the recent high-profile conviction of Thomas Murphy in the Special Criminal Court for tax-evasion. The level of this debate from both sides so far has, however, been wholly unsatisfactory from a human rights perspective. Gerry Adams’ suggestion that the existence of gangland murders shows that the Special Criminal Court does not work is as equally frustrating as Brian Hayes asking Mary Lou Mc Donald as to whether she thinks that Thomas Murphy is a good republican.
The relevance of this debate is not, however, limited to Ireland. Parallels can be drawn between Ireland’s experience of the Special Criminal Court and French Constitutional amendments currently being debated by its parliament. In turn, this can illuminate the key human rights issues at the heart of both states’ emergency responses.
France’s State of Emergency
Less than 72 hours after the attacks on Paris, French President François Hollande declared that France was at war and stresed the need for sweeping new laws to confront the terrorist threat. Hollande followed this up with the declaration of a state of emergency which was subsequently extended by parliament for a further 3 months. The emergency powers triggered by this declaration date back to 1955 and France’s last declaration of a state of emergency to deal with Algeria’s struggle for independence. These powers – outlined in legislation, not the French constitution – give French police the power to search homes without a warrant, ban protests and other public gatherings, and can potentially ensure control of the press and radio; although these latter provisions have not yet been triggered.
Hollande has also signalled his intention to effect permanent constitutional changes. The motivation for this is to place France’s emergency powers on a constitutional footing, insulating them from the possibility of a successful legal challenge. While France already has a number of constitutional emergency powers in its constitution – for example the militaristic state of siege – these powers are extremely draconian. By placing the existing legislative powers on a constitutional foothold, Hollande is seeking to enable ‘exceptional security measures without having to resort to the most drastic options currently in the Constitution.’
In principle this sounds like a positive development for human rights and the rule of law. The potential for the most draconian of measures that encroach severely on human rights is avoided while at the same time, the state’s response to terrorist threats can be beefed up.
Exceptional but not Drastic: The Special Criminal Court
This idea of having ‘exceptional security measures without having resort to the most drastic options currently in the Constitution, is strikingly similar to what the drafters of the Irish Constitution had in mind when constructing the emergency powers system in this state. Ireland’s principal emergency powers contained in Article 28.3.3° of the Constitution essentially allow for the suspension of every article of the constitution in a ‘time of war or armed rebellion’. The only restriction on this power is that the death penalty may not be re-introduced. Ireland was under a perpetual state of emergency from the outbreak of World War II in September 1939 until February 1995 following an IRA ceasefire.
The 1935 Constitution Review Committee upon whose recommendations the Constitution’s emergency powers are based upon also suggested a procedure for less serious emergencies to be included in the draft constitution. Such crises would be when ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’ and would permit the establishment of non-jury special courts. In this manner the need to declare a state of emergency and the extreme powers that would flow from this would be avoided.
While Ireland’s state of emergency remained in force from 1939-1995, in practice, no emergency legislation was actually on the statute books for much of this time. In contrast, the special courts clause contained in Article 38.3.1° of the Irish Constitution has resulted in the Special Criminal Court becoming a permanent feature on the Irish legal landscape. Indeed, its role has expanded to not only deal with terrorism-related offences but with organised crime. Minister for Justice Frances Fitzgerald also recently agreed to establish a new Special Criminal Court in order to alleviate the backlog in the existing system. In a similar pattern of normalising exceptional powers, the French authorities have already used their new emergency powers, not in the fight against suspected ISIS terrorists, but to place climate change protestors under house arrest during the Paris Climate Summit in December.
A declaration of a state of emergency and the requisite powers that flow from this are serious and present a profound challenge for human rights and the rule of law. Emergencies, however, may also protect human rights by quarantining exceptional powers to exceptional times; thus preventing them from seeping into the ordinary, everyday legal system. Divorcing ‘less-exceptional’ measures from the more extreme measures dilutes the stigma attached to them and increases the propensity for these ‘less-exceptional’ measures to become normalised and permanent. The permanent nature of the Special Criminal Court in Ireland is a testament to this. The current debate as to the continued existence of the Special Criminal Court has, however, been frustrating, ignoring these key concerns and instead focusing on cheap attacks or questionable reasoning.
The Challenge of Terrorism
It is not hard to imagine that a similar situation to Ireland’s Special Criminal Court will arise in France. Hollande has labelled the existing constitutional regime for a state of emergency and state of siege unsuitable for the fight against ISIS. They were designed for a different time and a different type of enemy. Thus while Hollande may have declared ‘war’ on ISIS and subsequently ordered airstrikes on the Islamic state and sought a UN Security Council resolution authorising ‘all necessary measures in compliance with international law’ to tackle ISIS in Syria and Iraq, he nevertheless views this war as qualitatively different from those France has waged in the past.
Declaring war on something implies that the solution is military. It also implies that it is temporary. The constitutional changes proposed by Hollande are, however, to the criminal justice sphere and police powers. Terrorism thus blurs the lines between war and crime. Crime, unlike war, is viewed as a permanent threat that we must live with every day. Counter-terrorist laws therefore are framed as being necessary in order to confront a threat of great magnitude, akin to war; however, they are also framed as being a necessarily permanent change to confront a permanent threat akin to criminality. It is because of this that many of the counter-terrorist measures we’ve seen enacted around the world in the aftermath of 9/11, and indeed the Irish Special Criminal Court are permanent.
A rush to draft laws in the aftermath of a serious crisis, where emotions run high, when people are afraid, and when the temptation to over-react is at its greatest must be resisted. This danger becomes even more heightened when the legal changes are to the permanent constitution of a state. France would do well to heed the lessons from Ireland.
Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. His research focuses on states of emergency, counter-terrorism, and human rights. He tweets @DrAlanGreene
The Court of Appeal is currently hearing arguments as to whether a man alleged to have links to the so-called Islamic State (IS) should be deported. While many of the facts of the current case, including the state to which the man is to be deported, remain subject to reporting restrictions, a number of issues are clear: The Government allege that the man in question poses a threat to national security and on that basis seek his deportation. For his part, the man claims that he has previously been tortured in the country to which he is to be sent and that if he is deported he will face a real risk of being ill-treated again due to the allegations of his links to IS, which he denies. Such challenges to deportation orders are not uncommon in European states; a notable example was the United Kingdom’s embattled attempt to deport Abu Qatada to Jordan which was finally successful in 2012.
Like the United Kingdom and all other EU member states, Ireland is a signatory of the European Convention on Human Rights (ECHR). The central legal issue in cases such as this stems from Article 3 of that Convention and the 1989 decision of the European Court of Human Rights in Soering v UK. Article 3 States that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The Soering case established that if an ECHR contracting state expels an individual to another state where substantial grounds exist for believing that he or she would face a real risk of suffering treatment proscribed by Article 3, then the ECHR contracting state would violate that provision by so doing.
The European Court of Human Rights has therefore read an implicit prohibition of return to a risk of torture or inhuman or degrading treatment or punishment into the text of Article 3. Furthermore in 1996 and again in 2008 the Strasbourg Court held that this implicit ban on sending individuals to states where they may be ill treated is absolute. In other words the behaviour of the individual or the threat that he or she poses to the host state, no matter how serious, cannot be taken into account to justify the deportation if there is a real risk that he or she will be ill treated. Article 3 therefore enshrines a very robust and not uncontroversial protection against return to ill treatment.
This means that if, in the case currently before the Court of Appeal, the applicant’s legal team can show substantial grounds for believing that he will be at real risk of torture or inhuman or degrading treatment following deportation, then according to long standing jurisprudence of the European Court of Human Rights –and contrary to the High Court’s finding on Monday– the threat that he poses to Irish national security cannot be taken into account when deciding whether or not he should be deported. If the existence of such a real risk is established the Irish Government simply cannot deport him to the proposed receiving state without violating Ireland’s human rights obligations under the European Convention on Human Rights. On Wednesday, 30 December, the European Court of Human Rights indicated a rule 39 interim measure to the Irish Government, which means that even if the injunction is lifted by the Court of Appeal the Government cannot, without violating the European Convention, deport the man until his case has been fully heard.
This case provides an example of the friction that can often arise between national security and the protection of individual human rights. In many ECHR contracting states deportation is often the preferred option in national security cases. This is because information indicating that the person is a threat may be inadmissible as evidence in a criminal trial or because such a trial may require the disclosure of information that could jeopardise on-going security operations. Because of these sensitivities some governments feel it vital to maintain the ability to deport individuals identified as threats to national security. The restraint of deportations under the ECHR has therefore long caused consternation among some ECHR contracting states where deportation plays a significant role in counterterrorism policy. This has seen the advent of the negotiation of diplomatic agreements with potential receiving states and the use of special closed-evidence tribunals such as the Special Immigration Appeals Commission in the UK. The outcome of the current case may raise important questions about how the Irish legal system is equipped to handle such challenges.
We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway
On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’ Continue reading “Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland”
Today the Labour Party became the second party to outline its plans for repeal of the 8th amendment and the possible legislation that would follow constitutional change (the first was the Green Party, whose proposals I analysed here). The proposals seem to have temporarily disappeared from the Labour page, but the Heads are uploaded here.
I must start this post by saying that, together with nine others (Mairead Enright, Vicky Convway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Claire Murray, Sheelagh McGuinness, and Sorcha uí Chonnachtaigh) I was involved as an independent expert in the Labour Women Commission on Repeal of the 8th Amendment. This Commission comprised a political group, a medical group, and a legal group. Our job, as the legal group, was to propose a piece of law that might act as a “model” for post-amendment legislating, listening to the views of the medical experts and feeding into the political decision-making processes of the political group.
Our involvement did not mean that the political group would automatically endorse our proposals, or that the Labour Party’s policy objectives would determine our proposals. Inevitably, the context in which we undertook the task of drafting such a law informed our approach to it, and we explain the thinking behind our draft law here. The draft law itself was published open access here. As is clear from the analysis that follows, the final proposals from the Labour Party adopt some, but not all, of what we proposed (just as the Green Party proposal did), and we all remain at the disposal of other political parties to discuss the proposals as they (we hope) formulate their policies on abortion coming up the general election. Continue reading “The Labour Party #repealthe8th Proposals: An Analysis”