In August the Lord Chief Justice of England and Wales, the appropriately named Sir Igor Judge (pictured left), gave a speech to the 2010 Bench & Bar Conference in Colorado. When British judges speak in the United States, it is almost obligatory that they flag up the shared constitutional history of both nations. What makes Sir Igor Judge’s speech different is that, having dispensed with a lengthy discussion of the role of Middle Temple Barristers in the founding of the United States, he develops an interesting thesis regarding the constitutional role of the judiciary in both countries. Continue reading “Weekend Reading: Sir Igor Judge on the Role of the Courts”
Events in Eastern Europe have yielded some sharp practice relating to the interaction of IMF requested austerity measures and national Constitutional Courts. While these decisions belong to distinct constitutional traditions, they embody underlying debates surrounding the judicial role, the influence of the IMF and the diminution of sovereignty in a global age.
The Latvian Constitutional Court State Pensions case of the 21st December 2009 considered the constitutional implications of government pension taken while under International Monetary Fund financing. The case originated in a constitutional complaint from over 9,000 pensioners against a law which decreased the amount received by current pensioners by 10% and that by future pensioners who were currently employed by 70%. The Government relied upon the emergency nature the measure as signaled by the involvement of the IMF. The applicants relied upon inter alia, the right to property under Article 105 of the Latvian Constitution (“…property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation”), and Article 109, which provided for a right to social security in old age. Continue reading “A Twilight of Sovereignty: Eastern Europe's Constitutional Courts, the IMF and Government Austerity Programmes”
In the second part of our coverage considering events in Irish legal history which have had a significant impact on the political institutions in place in Ireland and in particular upon questions of human rights, Laura Cahillane, a PhD candidate at UCC, assesses important missed opportunities in the early development of judicial review of legislation in Ireland.
Many people do not know it but Judicial Review in Ireland originated in the 1922 Constitution. Article 65, which has been described as “the most arresting provision in the Irish Free State Constitution”, provided that: “The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution.”
The concept of judicial review was not widely accepted at the time. In Europe, the principal objection to judicial review was that it violated the separation of powers principle. So it was in the United States that the idea, of legislative acts being reviewed by the judiciary, came into being. There is no express provision in the Constitution of the United States which gives this power to the judiciary. However, the power was established by precedent in the famous case of Marbury v. Madison and widely accepted by the American legal community. Continue reading “Human Rights in Irish Legal History: Cahillane on Judicial Review (Guest Contribution)”
As Liam mentioned here, I published an opinion piece in yesterday’s Irish Times in which I argued that commonly made calls for the wholesale replacement of the Irish Constitution (such as those made by, for example, the Labour Party, Justine McCarthy on Monday’s evening’s Aftershock on RTÉ and Leviathan) are misdirected. Instead of ushering in a ‘new republic’ or ‘renewed republic’ by means of a new Constitution, we ought, I said, to try to re-imagine our relationship with the State and to become more deeply engaged with the Constitution that we have. I want to say first of all that this was not an argument that the current Constitution is perfect or not in need of any amendment; it was argument against ‘scrapping’ Bunreacht na hÉireann and ‘starting over’ completely (the headline and by-line, as anyone who was written for a newspaper will know, were not written by me!). There are certainly some areas in which amendment would be helpful, but representing that the current state of our country would be rectified by scrapping Bunreacht na hÉireann and replacing it with a new Constitution strikes me as an unhelpful deflection from the real state of constitutional discourse in this country.
This discourse, I argued, is infected first of all by the manipulation of the Constitution by politicians who use the Constitution as a reason to do (or fail to do) certain things that are controversial, expensive or difficult and who, through failing to provide appropriate public education in the Constitution and the politics of this country, do not empower or equip us to challenge these assertions. Secondly, I argued that the discourse is infected by our own mythologizing of the Constitution and cultivation of an employee-client political system in which the ‘bigger’ picture can easily be lost.
In this post, I just want to address a few of the very interesting arguments that people have made in response to the piece and, I hope, to keep this conversation going. These are arguments have been made over at the Irish Times website and in this blog post by Prof. Ferdinand von Prondzysky at his excellent University Blog. I see five different themes in the various comments that have been made about the article, and I try to address each in turn here although they are all intertwined.
You can learn more about Fergus Ryan on our guest contributors page.
Waiting for family law reform is a bit like waiting for a bus. You linger forlornly for what seems likes an eternity, stoically weathering the elements. Then, just as you are about to give up, along comes a bus — and two more buses directly behind it.
In the past year, the Republic of Ireland has seen three major proposals for family law reform. The Civil Partnership Bill 2009, which is currently before the Dáil, promises a substantial new civil status for registered same-sex couples, with additional protective measures for cohabiting couples, same-sex and opposite-sex. The Law Reform Commission consultation paper, The Legal Aspects of Family Relationships, provisionally recommends some long overdue reforms to the law as it relates to guardianship, custody and access.
There is much to be welcomed also in the proposed constitutional amendment on children. For one, the proposed new Article 42 will apply to all children, and not just those born within marriage. The proposed amendment contains, in particular, a ground-breaking assertion that “[t]he State shall cherish all the children of the State equally.” This will banish, one hopes, the spectre of O’B v S,  IR 316, a Supreme Court decision that affirmed the constitutional validity of measures that discriminate against non-marital children. The Court concluded that the constitutional preference for marriage trumped the child’s right to equality. This constitutional amendment would arguably reverse that stance. Continue reading “Ryan on Family Law and the Children's Rights Amendment”
You can learn more about Ursula Kilkelly on our guest contributors page.
The report of the Joint Oireachtas Committee on the amendment to the Irish Constitution includes a proposal to include what is commonly known as the ‘best interests principle’ into the new Article 42 in two forms. The first form appears in Article 42.1.2° which recognizes the rights of all children and specifies that this includes the right ‘to have their welfare regarded as a primary consideration’. Although this provision refers to ‘welfare’ rather than ‘best interests’ and so could be said to be narrower (and arguably more paternalistic) in nature it otherwise mirrors the standard set out in Article 3 of the Convention on the Rights of the Child (CRC). Although the latter has been criticised for not requiring that the child’s interests are paramount, its strength is that it has wide application, potentially applying to all areas of state decision-making that affect children. Including this principle here, therefore, should require the state to ensure that regard is had to the child’s welfare in areas like budgetary decision-making, planning, immigration and criminal justice. Continue reading “Kilkelly on 'Best Interests' and the Proposed Constitutional Amendment”
You can learn more about Conor O’Mahony on our guest contributors page.
As part of the proposed constitutional amendment on children, the proposed new Article 42.2 proposes to enumerate, for the first time, a number of the rights of children, including “the right of the child to an education”. The proposal to include an explicit right of the child to education is welcome – indeed, it was recommended by the Constitution Review Group in 1996 – but in all probability, it changes little. The existence of such a right, correlative to the duty of the State under the existing Article 42.4 to provide for free primary education, was clearly reognised in Crowley v Ireland  I.R. 102 and has never been questioned since. The new provision could potentially be interpreted as being broader, given that it refers to “an education” rather than merely to “primary education”. However, it is unlikely that the courts – and particularly the current Supreme Court – would interpret this as including a positive right to education at a level higher than primary, given that the corresponding duty of the State under the re-numbered Article 42.8 would still refer only to primary education. While the Oireachtas Committee Report states that the rights that are recognised in the proposed Article 42.2 are “designed to make a tangible difference to children’s rights”, there is no suggestion that there was any intention to take a step as significant as extending the right to free State education beyond primary level, and in the absence of such a clear intention, no court is likely to so interpret the provision. Continue reading “O'Mahony on the Proposed Constitutional Amendment on Children – Education Aspects”
You can learn more about Nicola Carr on our guest contributors page.
The case for an amendment to the Irish Constitution to specifically enumerate the rights of children has been well set out by a range of commentators over a period of time. The issues pertaining to children in care or those on the ‘edges of care’ (that is those children who may be eligible for placement in care on the grounds of protection or welfare), have been a touchstone in these debates.
It has been argued that the balance between the ‘inalienable and imprescritible rights’ of the family, as set out in Article 41.1, and the power of the State to intervene in ‘exceptional circumstances’ where the parents in the said family have been deemed to have ‘failed’ in their duty as set out in Article 42.5, has been too strongly skewed towards the rights of the (marital) family. It has also been criticised for setting the threshold for State intervention too high. In the Report of the Kilkenny Incest Inquiry (1993) Justice Catherine McGuinness identified that the status of the martial family within the Irish Constitution was one of the barriers to State intervention in cases such as that described in the Inquiry Report – where a range of services had failed to successfully intervene in a case of longstanding abuse. Justice McGuinness therefore recommended that consideration be given to strengthening the rights of children by way of a Constitutional amendment. Continue reading “Carr on the Constitutional Amendment and Children in Care”
You can learn more about Fiona de Londras on our regular contributors page
The proposed children’s rights amendment to the Constitution offers much material for discussion in terms of scope, substance and process and these questions are considered in the other contributions to this blog carnival. My intention in this contribution is to take a step back and consider the importance of having a reflective, reasoned and open period of debate on the wording of the proposals before progressing to a formal constitutional referendum. The risk, after a long period of committee-based consideration and consultation such as that which has taken place around these proposals (even if that consultation was somewhat limited in various ways), is that the wording as proposed would be presumptively considered to be the final wording for the referendum. In such circumstances the debate would likely be dominated by somewhat polemic and positional viewpoints on the value and risks of separately enshrined children’s rights and away from the important question of what kind of language and constitutionalist value relating to children we as a people want to enshrine in the Bunreacht.
This danger is exacerbated in the context of children’s rights in Ireland by the particular social context in which the proposed wording has emerged. The recent past has brought to public attention the neglect and abuse suffered by children in Ireland at the hands of institutions to whom their care was entrusted, particularly institutions run by religious orders. The scale and extremity of the abuse and neglect that has been exposed has put the vulnerabilities experienced by children into sharp relief. In addition, the position of children who are being cared for within the family has also been brought into public consciousness in cases and controversies surrounding matters such as parental refusal for blood transfusions, medical treatment, access and guardianship, legal protection for the child’s relationship with unmarried fathers and so on. Continue reading “de Londras on Reflection, Rapidity and a Children’s Rights Referendum”
After over 2 years, 62 meetings and numerous milestones highlighting the precarious position of children’s rights in Irish society including the publication of the Ryan and the Murphy reports, the Oireachtas Committee on the Constitutional Amendment on Children has at long last issued its third and final report.
The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.
Having deliberated on the proposed Article 42(A).1–4 set out in Twenty-eighth Amendment to the Constitution Bill 2007, the Committee recommended ‘an alternative approach’. According to the Report:
The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.
Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.
2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.
3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.
4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.
5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.
6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.
7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.
8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
In doing so, the Committee highlighted that
It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.
There is much to be welcomed in the draft amendment, albeit that it still evidences some serious shortcomings in ensuring holistic protection to the rights of the child. In addition, there are a wide range of perspectives from which the proposed text could be considered. This blog entry, however, will focus on whether, if adopted, the Committee’s proposed wording would bring Ireland into compliance with its voluntarily assumed international human rights law obligations under the UN Convention on the Rights of the Child. Continue reading “The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective”