THE SPECIAL CRIMINAL COURT, THE IRISH GENERAL ELECTION AND THE PROPOSED FRENCH CONSTITUTIONAL AMENDMENTS

Dr Alan Greene Four Courts

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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

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The Labour Party #repealthe8th Proposals: An Analysis

By Professor Fiona de Londras, University of Birmingham | E: f.delondras@bham.ac.uk | T: @fdelond

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”

The Labour Party #repealthe8th Proposals: An Analysis

The Green Party’s Reproductive Rights Policy: An Appraisal

By Professor Fiona de Londras, University of Birmingham E: f.delondras@bham.ac.uk T: @fdelond

The Green Party has released a reproductive rights policy in advance of the general election. The policy is very welcome, and is a further indication that reproductive justice is likely to be a central issue in the forthcoming election. The policy is especially interesting in that it speaks to a broad reproductive rights policy, endorsing better maternity care and more choice in maternity and birthing options, and committing to access to safe and affordable contraception, which is a very welcome development. The publication of this policy also speaks to the Green Party’s decision to support repeal of the 8th Amendment by means of a referendum, although its support is given “on the condition that the Government have provided draft legislation which will be put in place if the referendum passes”. It is on this proposed law that I want to concentrate here. Continue reading “The Green Party’s Reproductive Rights Policy: An Appraisal”

The Green Party’s Reproductive Rights Policy: An Appraisal

Politics and The Policing Authority

mincommMinister Frances Fitzgerald stated in the Seanad last week that she is “committed to delivering a sea change in the oversight of policing.” At the core of the reform package which will supposedly deliver this is the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 and the soon to be created Policing Authority. She has stated that this body Continue reading “Politics and The Policing Authority”

Politics and The Policing Authority

Are There Limits to Absolute Privilege?

We are delighted to welcome back Dr. Jennifer Kavanagh of Waterford Institute of Technology with this guest post on the role of the Defamation Act 2009 in discussions about media reporting of Dail privilege.

Introduction

The issue of parliamentary speech and protecting both the speech rights of members of the Oireachtas and the media are important aspects of civil and political rights. The ability of members of the Oireachtas to raise matters of public importance without the ‘chilling effect’ of defamation law is a common feature of western democracies based on a common law tradition.

However, the ability for parliamentary speech which is covered by absolute privilege to permeate the media without restriction and for the media to act in their role as the ‘educators or public opinion’ was questioned. This issue has been highlighted by the recent restriction placed on the reporting of the statements of Catherine Murphy to the Dáil by RTÉ. Even though Mr Justice Donald Binchy has clarified and released a redacted version of the High Court judgment, the impact on political speech of Oireachtas members remains.

 The Role of Oireachtas Members and the Need for Absolute Privilege

The members of the Oireachtas are there to theoretically hold the Government to account. One fundamental part of their role is to air issues of public importance. For this reason it is essential that their speech is not subject to the review of the courts. The protection is known as absolute privilege and means that the statement of members of the Oireachtas in the chambers of either the Dail or the Seanad cannot be considered by a court.

This principle is enshrined in the Constitution. Members of both Houses of the Oireachtas are protected by the Constitution from Court actions in relation to what they say in the House. This type of protection is widely found in democratic states and is considered an important foundation stone for an effective parliament. The Irish version draws heavily from provisions in Westminster. The original version of the protection was incorporated in the Bill of Rights which placed utterances by members of parliament outside of the scope of the courts. Under Article 9 ‘…freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’ Under the provisions of Article 15.13 a TD “shall not, in respect of any utterance in [the Dáil], be amenable to any court”. However a member can be asked to account for what they have said to the House itself.

The provisions of Article 15.13 are reflected in the Defamation Act 2009 which includes what is known as ‘absolute privilege’ in section 17 which states that any statement made in either House is protected. The principle which underpins parliamentary privilege is that members of either house of parliament should be able to raise issues in the public interest without fear of court action.

The rules for debate in the Oireachtas are set by means of Standing Orders and is provided for under Article 15.10 and set out a procedure for the amendment of the Dáil record to reflect a complainant’s side of the story when an abuse of privilege has been found. This procedure under the provisions of Standing Order 59 have proved useful for those that are aware of the process in the past.

The Limits of Absolute Privilege

However there is an issue with the protection reporting such speech in the construction of section 17. If the parallel restriction for speech in court and the reporting of such speech is considered and then contrasted to the protections for parliamentary speech it is clear that there is actually no absolute privilege for reporting the Dáil. This is even more striking when the previous legislation is consulted. Second Schedule, Section 24 of the Defamation Act 1961, provided expressly for the protection of speech when reported from the Dáil.

A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry on a matter of public importance.

Impact of Inconsistency

The position of parliamentary speech has now been re-established with the restatement of the order from the High Court judge. However the inconsistency between the drafting of both the provisions leaves the position of the media in doubt. The previous situation where media organisations could not report on the proceedings of the Dáil even though the same statements were freely available on the Oireachtas website and transmissions, showed how the position of the media as ‘organs of public opinion’ were unable to act in their constitutionally mandated role as ‘educators of public opinion’ were unable to tell citizens what transpired in their national parliament. Until the gap between both the 1961 and 2009 Defamation Acts are addressed the possibility of action against the media for statements made in the Dáil will continue.

Are There Limits to Absolute Privilege?

The Embodied Subject: Northern/Irish Feminist Judgments Project

WHB6t5xX_400x400This report of the fourth workshop of the Northern/Irish Feminist Judgments Project is by Sandra Duffy, an LL.M. student in International Human Rights Law & Public Policy at University College Cork.

‘The Embodied Subject’

The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015. The Project, headed by Aoife O’Donoghue (Durham), Julie McCandless (LSE) and Máiréad Enright (Kent), seeks to add an oft-missed perspective in Northern/Irish jurisprudence by inserting a feminist judge on the bench of the Court in question in each case, and having them write the judgment addressing the issues overlooked or under-considered by the judgments handed down in the case itself.

The theme of the Dublin workshop was ‘the embodied subject’. As with most feminist consideration of the state of embodiment – especially that of women – there is often as much to be found in the silences as in the words. What does the law make of women’s bodies? Where are the gaps in consideration? How does the law address, or not address, the experiences of transgender and queer women – both in legislation, and in judicial opinion? Laws regulating the body, the physical self, can be blind to the social and psychological consequences they carry for the person thus regulated. If the law – as in most of the cases covered during the weekend – operates on a strict sex binary, where those female-assigned at birth are de jure considered female and those deemed male cannot be seen to be de facto female later in life, then the gendered experience of being a woman and experiencing one’s body is the square peg in the law’s round hole. Indeed, as Tanya Ní Mhuirthuile and Ivana Bacik ask in their judgment on Foy v An t-Ard Chláiritheoir, must sex assignation at birth be considered a statement of fact, or a rebuttable presumption?

The female sexed and gendered body forms an object for the law more often than its owner is deemed to be a subject and a participant in those laws. The selection of cases presented in this weekend displayed the judicial attitude to womanhood in all its forms, ranging from reproductive rights to gender recognition to adoption and ownership of one’s identity. The workshop also included cross-disciplinary talks from social scientists and activists which sought to place the question of law and the embodied subject into its fuller social context. The cases under consideration were McGee v Attorney General[1], McKinley v Minister for Defence[2], BJM v CM[3], Foy v An t-Ard Chláiritheoir[4], Barnes v Belfast City Council[5], Zappone and Gilligan v Revenue Commissioners[6], DPP v Tiernan[7], DPP v C[8], CC v Ireland[9], P.M.  v.  St. Vincent’s Hospital[10], and IOT v B[11].

These cases cover a broad spectrum of issues: the directly corporeal (BJM v CM, where the woman in question was treated as a body and nothing more by her ex-husband and the original judge) to the adminstrative (Zappone and Gilligan, two female spouses challenging an inequality in recognition and tax law) to the intersection of the civil right to privacy and the practical impact on health and family from denial of that right (Mc Gee v Attorney General). At times, the original judgments were considered to be broadly fair in their scope, in particular that of McKechnie J in Foy, where the rewriters found themselves in the curious position of being almost satisfied with the original opinion and looking for things to render it complete! Other cases, however, required fundamental change from the ground up. In Máiréad Enright’s opinion in McGee, she found herself breaking down the facts and circumstances of both the plaintifs, the McGee family, and the societal context in which the case took place. Máiréad questioned whether the right to use contraception was correctly identified as a right of the family unit, preferring to see it as a matter of individual privacy. The freedom to regulate one’s family planning could be considered to be a right of ’embodied conscience’ – living one’s civil and political rights through bodily experience.

One particularly egregious original judgment was that in BJM v CM. After having married, BJM was shocked to discover his wife had seriously physical scarring from a bad accident. He claimed that this scarring was physically repulsive enough that he had been tricked into the marriage and that his consent could not be considered informed; therefore, he sought a decree of nullity. Appallingly, this opinion was carried and the Ms’ marriage was annulled. This left CM in a position where she and her family found their lives in upheaval and their seventeen-year household suddenly without legal rights. The feminist judges remarked in particular on the voicelessness of CM throughout the case. The whole proceedings centres around BJM: his feelings and his experiences. CM is reduced to an object over which men are arguing. Indeed, the original judge goes so far as to state that concealing her scarring was to conceal something of ‘the fundamental nature of the person’ akin to a psychiatric illness. CM did not, however, suffer any such irregularity in personality or emotions – but due to her husband’s claimed lack of attraction to her, she was deemed defective enough that BJM could not have given informed consent to marrying her. She is regarded as her body and nothing more. The commentators also spoke about the lack of sexual identity of women before the Irish courts. The Madonna/whore dichotomy is very evident here; CM is either properly modest for not sleeping with BJM before marriage, or she is a dishonest fraud who sought to entrap a man before revealing her ‘dysfunctional’ self. Possibly she is both at once, but we cannot know what she herself was thinking because all the commentary on her life is coming from men – male husband, male doctors, male judge. If the embodied female subject in Irish law has a nadir in terms of respect, BJM v CM may possibly be it.

The interdisciplinary panels interspersed through the delivery of judgments covered issues of women in Irish society ranging from the history of the women politically active around the 1920s in Ireland, to the struggle for women’s right to sit on a jury. They included stories of front-line activism, such as that of front-line campaigner Ailbhe Smyth, and a powerful story from leader of the Survivors of Symphysiotomy support group Mary O’Connor. Most unexpectedly enthralling was the presentation of social geographer Mary Gilmartin, who spoke on ‘Bodies, Borders, and Scales’. She spoke of how the way in which we organise and conceptualise our physical space in society is one of the instruments through which we experience our lives within that society. The hierarchy of our esteem for space, placing cities as centres of power, alienates those without access to such power; similarly, when we consider the world as a collection of ‘more important’ versus ‘less important’ areas, we assign identity to people based on the physical space which they occupy and weigh their existence as more or less relevant than our own. In this way the symbolic value of that person’s physical existence is linked to their assigned place in the world – in Mary’s words, “the body, in effect, becomes the carrier of the border.”

Considering the physical self to own within it the borders of one’s assigned societal identity brings with it another way to understand the experiences of LGBTQ subjects in law. Whether it be a challenge to the legitimacy of one’s marriage or the ability to live without constant worry of being revealed to be transgender, the lives of the queer and trans* community in Ireland have never been easy. The brave women at the centre of the Foy and Zappone and Gilligan cases know that they carry with them the borders imposed on them by society, and in challenging those borders in the courts they opened their lives up to scrutiny and invalidation. The LGBTQ rights campaigns have always involved the assertion of both physical and psychological identity by those involved: the law addresses them solely as the product of their physical bodies in deciding who they are and with whom they may form a family. From a feminist viewpoint, the right to be considered a person in possession of full and equal human rights is essential. The feminist and LGBTQ struggle overlap and intersect, and it is right that we should deconstruct thinking around queer bodies as we do around female-sexed bodies more generally.

In thinking about bodies and their effects and uses, the questions of sexual activity, reproduction, and sexual violence arise. While the third IFJP workshop, in University College Cork, had centred on ‘the mothering subject’, this workshop looked at the effects of sexual regulation in Ireland on the woman as an individual as opposed to the carrier/mother of a child. Contraception was spoken of in the McGee judgment, and Máiréad also gave a colourful account of the condom-smuggling trade over the border in the 1970s. Caroline Fennell and Louise Kennefick had written their opinion on the DPP v Tiernan case, in which a sentence for rape was challenged and questions related to the law of sentencing overall arose. The feminist judges took issue with the views of Finlay CJ in the case, noting that his judgment contained stereotyped views of women and drew distinctions between different circumstances in which rapes occur. They wished to focus more on the role and experience of the victim-witness as an autonomous actor in the trial process (leading them to consider, also, the propriety of using feminist principles to argue for retributive justice for a victim). Eilinóir Flynn and Sinéad Ring looked at another case involving sexual autonomy, that of DPP v C. This case was based on the law around consent to sexual acts. The judges gave a thoughtful, complex look at the idea of consent both per se and as it can be regulated/proven in court. Foremost, again, were the ideas of autonomy and agency of the consenting party. They also noted that discussions of consent, as in this case, can be very heteronormative – just another way in which the embodied self finds itself playing a pre-determined role before the law.

The issue of corporeality is inseparable from the experience of being a woman in a sociolegal context. On a personal level, I took from this workshop a broader understanding of my existence before the law, along with the challenges of viewing the consequences of my own embodiment and that of others with a critical eye. From a wider perspective, being able to read a case with an eye to how the biological sex and true gender of the participants is an exercise which illuminates some repeating themes in Irish law: the body, the mother, the sexuality, the autonomy of choice.

[1]    [1973] IESC 2 (Máiréad Enright (Judge) & Emily Cloatre (Commentator))

[2]    [1992] 2 IR 333 (Joanne Conaghan (Judge) & Fergus Ryan (Commentator))

[3]    [1996] 2 IR 547 (Aideen Ryan & Katie Dawson (Judge) & Christine Ryan (Commentator))

[4]    [2007] IEHC. 116 (Tanya ní Mhuirthile (Judge) & Ivana Bacik (Commentator))

[5]    [2012] NICA 19 (Marie Fox (Judge) & Fiona Cooke (Commentator))

[6]    [2006] IEHC 404 (Fiona de Londras (Judge) & Siobhán Wills (Commentator))

[7]    [1988] 1 I.R. 250 (Louise Kennefick & Caroline Fennell (Judge) & Liz Campbell (Commentator))

[8]    [2001] 3 IR 345 (Eilionóir Flynn &  Sinéad Ring (Judge) & Anna Arstein-Kerslake (Commentator))

[9]    [2006] IESC 33 (David Prendergast (Judge) Cian O’Concubhair (Commentator))

[10]  [2003] IR 321 (Mary Donnelly (Judge) & Claire Murray (Commentator))

[11]  [1998] 2 IR 321 (Katherine O’Donnell & Claire McGettrick (Judges), James Smith (Commentator))

The Embodied Subject: Northern/Irish Feminist Judgments Project

O'Conaill on the 'Logic' of 'No' #marref

Don Photo smallWe are pleased to welcome this guest post from Donnchadh O’Conaill (left). Donnchadh is a Lecturer in Metaphysics at the University of Leeds. In the autumn he will be moving to Helsinki to take up a postdoctoral position on The Epistemology of Metaphysics project.

The referendum on same-sex marriage has thrown up a variety of arguments from both sides, including empirically-based claims and discussions of specific points of law. Writing as someone from a philosophical background, I was more interested in the logical manoeuvrings on either side. The pattern of the debate has been for the No side to produce the wider variety of arguments; against appeals to equality, they have offered a number of reasons to justify the different treatment afforded to same-sex and opposite-sex couples. In what follows I shall discuss three arguments offered by proponents of a No vote.

The issue of surrogacy and the possible harms to children and surrogate mothers were prominently discussed in the final weeks of the campaign. By and large the Yes side have dismissed this as a red herring: there is at present no law covering surrogacy in Ireland, and the proposed constitutional amendment would not introduce one. Prof. William Binchy introduced a new twist on this worry. Rather than arguing that surrogacy should be prohibited, he suggested that a Yes vote could prevent a future government from introducing such a prohibition:

The syllogism that a court would confront is as follows: married couples have a right to procreate; married couples include two gay men, who can procreate only by means of a surrogate arrangement; therefore, a law restricting or, a fortiori, banning such an arrangement would be unconstitutional as it would prevent the gay men from procreating by the only means open to them (Irish Times, May 12th).

There is little philosophers like better than a good syllogism. Prof. Binchy’s isn’t a bad one, but I fear it is not the syllogism he needs. The first premise, that married couples have the right to procreate, has been questioned by Oran Doyle and Conor O’Mahony; certainly, it does not seem as secure as Prof. Binchy’s article might lead one to believe. But let us grant it, and let us assume also that this right extends as far as a right to access surrogacy if that is the only means by which a couple can procreate. Given the first premise, in the event of a Yes vote Prof. Binchy’s conclusion would follow. The trouble is that this conclusion has little to do with the result of the referendum. If married couples have the right to procreate, and if this right extends as far as a right to access surrogacy by those who cannot procreate in any other way, then this right must already be enjoyed by those heterosexual married couples who, for whatever reason, cannot procreate biologically and cannot adopt children. If Prof. Binchy’s syllogism holds true in the case of two gay men, then it seems it must hold true in the case of some heterosexual couples also. In that case, the hands of any future government have already been bound, regardless of the result of the referendum.

A more unusual argument was put forward by Prof. John A. Murphy, who described the proposed amendment as “constitutional nonsense” (Irish Times, May 13th). He suggested that

if the referendum is passed, Article 41, heretofore unambiguously and exclusively heterosexual, will also recognise a homosexual couple “as the natural primary and fundamental unit group of Society . . . a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law”. Moreover such a couple will be guaranteed protection by the State “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State” (Article 1.2).

It is not entirely clear how Prof. Murphy’s argument is meant to proceed. On a literal reading, he is suggesting that if the referendum is successful, the homosexual family or a homosexual couple would itself become the primary and fundamental unit of society. This would be an outlandish result, but the idea that this is what would happen should the referendum be passed is based on a bizarre misreading of the constitution. Article 41 uses the term ‘the Family’, which is an abstract singular term – it does not refer to any particular family or to any group of families, but to the social institution of that name. At present under Irish law this institution includes married heterosexual couples raising their own children, married couples raising children they have adopted, and married couples who have no children. In the event of a Yes vote this institution would include homosexual as well as heterosexual couples. That is, homosexual families would be legally recognised as belonging to ‘the natural and primary unit group of Society’. This is very different to saying that a homosexual couple would itself become this unit.

It may be that Prof. Murphy meant to express a different thought: that in the event of a Yes vote, the Family would include homosexual couples, but that it is “grotesque nonsense” that such a couple could be among the fundamental units of society. This reading has the advantage of not attributing to Prof. Murphy the bizarre interpretation of the constitution I have just outlined, but as an argument against same-sex marriage it is scarcely in better shape. For Prof. Murphy owes us a reason for thinking that it is nonsense for a homosexual couple to be among the fundamental units of society. The fact that such a couple would be incapable of procreating or raising their own children would not suffice, given that numerous childless heterosexual couples already belong to the institution of the Family. Of course, one might say that such couples do not deserve any special constitutional status, but in that case the result of the referendum would again be irrelevant to one’s concerns.

The final argument I shall consider has been put forward by a number of advocates on the No side; it can be understood as concerning the meaning of marriage, or the relationship which is claimed to hold between marriage and procreation. A number of commentators have suggested that if same-sex marriage is legalised, this relationship would be weakened or even broken completely. Some critics have denied that there is any such relationship, but it is more interesting to assume that one does exist, and to inquire into what its nature might be.

Whatever the relationship between marriage and procreation is, it is surely not the case that the ability or willingness to procreate is a necessary condition for a couple to be married. Rather, the suggestion must be that the relationship between procreation and the social or legal institution of marriage holds in such a way that couples who are neither willing nor able to procreate can still marry. The problem is that on this understanding, it is hard to see how allowing same-sex couples to partake in the institution would weaken or break this relationship. The institution of marriage would still provide precisely the same opportunities and support for those who wish to procreate within it – it would just be open to a slightly larger number of people who cannot (by themselves) procreate.

There are a number of possible responses available to the proponent of the procreative link, but the main one which has been put forward in the referendum debate is that marriage must be oriented towards procreation, even if it happens that procreation does not occur or is not biologically possible. For instance, Bishop Kevin Doran claims that “What makes marriage unique is the orientation of this committed relationship to the procreation and care of children”. The suggestion is that same-sex relationships could not be oriented towards procreation, though they may share many other features with marriages. If this is correct, then it would simply be a category error to speak of same-sex marriage.

One interesting point about this argument, which has not to my knowledge been commented on, is that for someone who accepts it, the appropriate response to the referendum would not be to vote No, but to abstain on the grounds that the very idea of a popular decision on this issue makes no sense: it would be like deciding by vote whether or not 2 + 3 = 5. Leaving that aside, the orientation argument suffers from other problems. One is the danger of conflating the nature of the social or legal institution of marriage with the nature of particular marriages. It may be that the institution of marriage is oriented towards procreation (for instance, it may be because of the link between marriage and procreation that the State has a legitimate interest in supporting marriage). It does not follow from this that each individual marriage must itself be oriented towards procreation. The institution of the public library is oriented towards providing educational resources, or perhaps just entertainment, but people use public libraries for all manner of reasons, some of which have nothing to do with these noble goals.

Could it be argued that not only is the institution of marriage oriented towards procreation, but so too must any individual marriage? Maybe so, but again the trick is to spell this out in such a way that homosexual couples could not possibly be oriented towards procreation, but a heterosexual couple who are biologically incapable of procreation are. For example, Patrick Treacy & Rik van Nieuwenhove note that only heterosexual relationships “can bring forth new life”, and that “only this union is intrinsically fruitful in biological terms” (‘The Integrity of Marriage’). But not all heterosexual relationships can be fruitful in this way. From the fact that only (some) heterosexual couples are capable of unassisted reproduction, it does not follow that all heterosexual couples deserve different legal treatment to any homosexual couples.

If there is a relationship between marriage and procreation, it would appear to concern the institution of marriage, and it is most likely a link such as the following: procreation and childrearing are the reason (or one of the main reasons) why marriage was established as a social institution and continues to enjoy legal status and protection. But while this is a plausible account of the relation between marriage and procreation, it tells us little about who is (or is not) entitled to avail themselves of this institution. And that, in effect, is what the referendum concerns.

 

O'Conaill on the 'Logic' of 'No' #marref

Children’s Rights and Marriage Equality

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Human Rights in Ireland welcomes this guest post on the marriage equality referendum and children’s rights from Prof. Ursula Kilkelly. Ursula is Dean of UCC School of Law and an international expert in rights of the child.

Debate on the proposed constitutional amendment introducing marriage equality into Irish law has been dominated by its potential impact on children. Claims have been made that children have a right to a mother and a father which will be violated by granting same sex couples the right to marry. It has been argued that the extension of marriage to same sex couples will redefine the family under the Constitution with consequences for children’s interests and rights, especially in the creation of families through surrogacy, donor assisted human reproduction (DAHR) and adoption. This post responds to these assertions while arguing that in fact the adoption of marriage equality will strengthen children’s rights in Ireland.

Marriage grants no right to have children, regardless of gender or sexual orientation, and confers no entitlement to create a family through adoption, surrogacy or DAHR. Indeed, family law matters concerning children are determined by what is in the best interests of the child and this will not change with marriage equality. Adoption law requires that the welfare of the child is the paramount consideration and Irish law was recently strengthened so that the child’s best interests are paramount in guardianship, custody and access matters. In addition, the Children and Family Relationships Act 2015 requires the courts to have regard to a range of factors or circumstances relevant to the child and his/her family when making decisions in this area, in a measure that will mean an even greater focus on the child’s interests in such decision-making. Although the 2015 Act includes some measures designed to protect information as to the child’s identity when born through DAHR, comprehensive legislation governing surrogacy and assisted reproduction is long overdue. This is clearly necessary to protect the rights of all children born in this way, whether their parents are married or unmarried, heterosexual or same sex couples. Despite its importance, the need for a comprehensive regulatory and legislative regime for surrogacy and D/AHR exists independently of any constitutional proposal for marriage equality.

International human rights law recognises the importance of parents to children and their development. However, no right to a mother and a father has been recognised either by International or by Irish law. Rather, what international law protects is a child’s right to respect for family life and family relationships. This is particularly evident from the case-law of the European Court of Human Rights given effect in Irish law in the European Convention on Human Rights Act 2003. This makes clear that family life – the existence of close personal ties which can be based on biological and/or social relationships – is worthy of legal protection under Article 8 of the European Convention on Human Rights.

The Convention on the Rights of the Child (CRC)– adopted by Ireland and 192 other states – reflects the importance of the family to children noting in its Preamble that a child ‘should grow up in a family environment, in an atmosphere of happiness, love and understanding’. The CRC refers interchangeably to ‘parents’ and ‘legal guardians’ and makes no reference to ‘marriage’ or ‘married parents’; it does not mention ‘fathers’ at all and refers to ‘mothers’ only in the context of pre and postnatal care. Importantly, the terms ‘family’ and ‘family environment’ are repeatedly mentioned throughout the Convention and, in provisions like Article 5, the CRC adopts an inclusive approach to the family, incorporating a range of family forms including the extended family community. The CRC acknowledges that some children cannot be cared for by their birth or biological parents for a multitude of legitimate reasons (which have nothing to do with the children themselves) and it is implicit in the Convention that no one particular family type can fulfil children’s needs.

The CRC recognises the right of the child as far as possible to know and be cared for by his/her parents, while also providing for the right of the child to maintain contact with them. However, the CRC cannot be used to assert that every child has an absolute right to be raised by his/her birth, biological or genetic parents. Again, the emphasis here is on providing protection for the child’s family relationships, rather than entitling the child to be reared only by his/her biological mother and father. The child’s right to identity (of which genetic identity is just one part) although important, is distinct and separate from the question of who provides the child with family care. What is important to children’s well-being – and frequently to children themselves – is not simply who their biological or birth parents are, but the quality of the care, support and security that they receive in their families in the here and now. Research increasingly shows that the quality of children’s relationships with their carers is what affects children’s lives and life chances.

We know that for various reasons marriage often (although clearly not always) provides the stability that children need to develop and grow with confidence. Its legal protections set it apart from other forms of relationship recognition and registration, including civil partnership which in Ireland ignores children altogether. Civil marriage is an important commitment, undertaken by those who desire formal, public endorsement of their relationship and it confers important legal protections to the parties. While it has been deemed legitimate in certain circumstances to treat a married couple different from an unmarried couple, it is not permissible to discriminate against children on the basis of their parents’ marital status. Although the unjust concept of ‘illegitimacy’ has been abolished, children in non-marital families – including but not limited to children whose parents are a same sex couple – continue to experience inferior treatment under the law. Although the Children and Family Relationships Act 2015 makes it easier for guardians to be appointed to children in such situations, it remains the case that their relationship with their parents does not attract the same legal protection as children born to married parents. It follows therefore that rather than undermine children’s interests and rights, the adoption of marriage equality would represent further progress to equalise the position of all children. In particular, it would offer children the benefit of the legal protections that marriage affords regardless of whether it preceded or succeeded their arrival into the relationship. For children, none of these things matter.

Despite the changing nature of the Irish family, we continue to idolise marriage as if it were the only family form in existence and the only way to provide children with the love and security that they need. The irony is that notwithstanding the pledge of the Irish Constitution, Ireland has never fulfilled its promise to protect the family and our dismal record in the protection of the rights of children is known worldwide. If Ireland were a truly child-friendly state we would ensure by law that all children are entitled without discrimination to respect for their family relationships. We would put in place a legal regime that respects and protects children equally regardless of their different circumstances and the diversity of their families and that protects children’s rights regardless of how they were conceived and to whom. And we would permit those who wish to do so to marry and separately, set the bar high for everyone – regardless of gender or sexual orientation – with the legal responsibility to support, protect and nurture children.

Children’s Rights and Marriage Equality

What Makes a Legal Marriage? A Response to the Catholic Church

201411031133092Dr Maebh Harding is an Assistant Professor, School of Law, University of Warwick.

The recent threat by Ireland’s Catholic bishops to refuse to perform the civil aspects of a wedding if the marriage equality referendum is ratified will have no effect on the legal validity of Catholic marriages in Ireland. Parties to a marriage are married to each other when both of them make a declaration in the presence of each other, a registered solemniser and the two witnesses that they accept each other as husband and wife. Refusal by the solemniser to complete paperwork may create unnecessary hassle for the couple and the civil registration service but does undermine the legal validity of a marriage.

 

If the amendment is carried, the Irish Catholic Bishops will continue to carry out religious marriages but are considering refusing to sign the Marriage Registration Form: a civil form that is returned to the civil registration service as proof of the ceremony. Such a refusal will make it more difficult for couples to obtain civil proof of their marriage but does not affect the marriage’s legal validity. Where the couple has given requisite legal notice and are married by a Catholic priest who is a registered solemniser following the traditional Catholic rites, they are legally married, with or without the completion of a marriage registration form.

Irish marriage law works on the premise that all marriages are legally valid unless certain substantive requirements, the lack of which is declared in legislation to annul a marriage, are not fulfilled. The power to decide whether or not a marriage is legally valid lies in the High Court not the Civil Registration Service. Minor mistakes in protocol such as typographical mistakes on legal paperwork and stuttering over vows have no effect on the legal validity of marriages. Continue reading “What Makes a Legal Marriage? A Response to the Catholic Church”

What Makes a Legal Marriage? A Response to the Catholic Church

Devolution and the Future of the UK’s Human Rights Act 1998

HRAThe Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):

[R]espondents, in particular in Northern Ireland …  were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland

Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.

So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.

But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.

Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.

The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in yesterday’s Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.

Devolution and the Future of the UK’s Human Rights Act 1998