Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Supreme CourtThis note is based on MacMenamin J.’s decision, available here. SCOIRL have a succinct post on the outcome in this case. A decision was also given by McKechnie J, and is not yet available. However, I understand that McKechnie J. came to the same conclusion, albeit for different reasons. With thanks to Patricia Brazil for providing me with a copy of the available decision. As this is a longer post that usual, you can find a copy of this post here.

The Context

On Friday, 13 March 2015, the Supreme Court gave an important decision in the case of O’Donnell v South Dublin County Council (not yet on courts.ie, Irish Times report here). The case revolved around the statutory duties upon South Dublin County Council (SDCC) in the area of housing and Traveller accommodation. The High Court, in a number of cases: Doherty v SDCC (2007), O’Donnell v SDCC (2007) (Laffoy J.) and O’Donnell v SDCC (2008) (Edwards J) (discussed here, pp 13-14), considered the duties of local authorities under Irish housing law and the impact of the ECHR Act 2003. The Irish Supreme Court have been exceptionally conservative when it has come to interpreting the Constitution as providing any form of socio-economic rights duties on the State.

The European Court of Human Rights has been reluctant to interfere with decisions of state/local housing authorities in the housing law arena. The ECtHR has stated that Article 3 and Article 8 ECHR cannot be interpreted as providing a duty on the State to provide everybody with a home, unless there are very exceptional circumstances at play (see, M.S.S. v Belgium and Greece, discussed in detail here).

The decision on Friday, 13 March 2015 in O’Donnell v South Dublin County Council provides at least a signal, that in very exceptional circumstances, legislative duties coupled with constitutional/ECHR rights may protect socio-economic rights. However, as will become clear below, the decision has not resulted in the provision of accommodation to Ellen (or other members of the O’Donnell family) and Ellen continues to live in accommodation that is inhuman and degrading. Continue reading “Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court”

Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Taxes, juries and emergency powers: Murphy v Ireland

In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” —  but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.

Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.

The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading “Taxes, juries and emergency powers: Murphy v Ireland”

Taxes, juries and emergency powers: Murphy v Ireland

Economic, Social and Cultural Rights in Ireland – Why the Constitution?

Constitutional ConventionWe are delighted to welcome this post from Katie Boyle on economic, social and cultural (ESC) rights in the Irish Constitution. Katie is a PhD student at the University of Limerick and an ESRC Research Fellow at the University of Edinburgh. She is also a solicitor and has previously advised state departments and parliamentary bodies on human rights compliance. Katie has lectured in both Ireland and the UK on International Human Rights, Public Law and Constitutional Law. Continue reading “Economic, Social and Cultural Rights in Ireland – Why the Constitution?”

Economic, Social and Cultural Rights in Ireland – Why the Constitution?

Legal Analysis of the Children's Referendum: Introduction to Article 42A

Aoife Nolan is Professor of International Human Rights Law in University of Nottingham. Liam Thornton is a lecturer in law and director of clinical legal education in University College Dublin. Aoife and Liam are organising Human Rights in Ireland’s contribution to the debate on Article 42A, the Children’s Amendment.

There have been concerns in some quarters at the lack of debate on issues relating to the Children’s Referendum (see here and here, however TV3 will be hosting a debate on October 31). The posts today (23/10/2012) seek to summarise the impact of proposed Article 42A. These posts seek to do so in a manner that is accessible to all and without advocating how you should vote.  The following is the schedule of posts that will appear today, between 12.15pm and 3.15pm:

At 12.15pm, Conor O’Mahony (UCC) will outline the provisions of Article 42A.1

At 12.45pm, Eoin Daly (UCD) will outline the provisions of Article 42A.2.1

At 1.15pm, Liam Thornton (UCD) will outline the provisions of Article 42A.2.1

At 1.45pm, Fergus Ryan (DIT) will outline the provisions of Article 42.A.3

At 2.15pm, Ursula Kilkelly (UCC) will outline the provisions of Article 42A.4.1

At 2.45pm, Aisling Parkes (UCC) will outline the provisions of Article 42A.4.2

Finally, at 3.15pm, Seán Ó’Conaill (UCC) will deal with the Irish language text of Article 42A.

It is hoped that these posts will provide you with an accurate and accessible overview of the proposed changes to the Irish Constitution.

Legal Analysis of the Children's Referendum: Introduction to Article 42A

The Children's Referendum: The Oireachtas Debates

The debates that took place in the Dáil and Seanad (known collectively as the Oireachtas) on the wording of the children’s constitutional amendment reflect similar debates that have been occurring over recent weeks on the wording of the amendment that will go before the people (see here). There was no direct opposition to the amendment, but there had been some (failed) attempts to expand the scope of the amendment.

In introducing the Thirty-First Amendment of the Constitution (Children) Bill 2012, the Minister for Children, Frances Fitzgerald stated:

The Bill I have brought to the House will allow for one of the most important referendums in the history of the State….The values it [the Constitution] espouses and rights it provides are so intrinsically connected with being a citizen of this nation that we rarely question from where those rights and values come. The only time the average person really needs to pay direct attention to the Constitution is when it is discovered to be lacking or when he or she needs to rely on it to protect his or her rights. In the case of the children of the State, it is lacking.

The focus in introducing the Amendment was the protection of those most in need of protection. Minister Fitzgerald herself notes that this amendment will generally only affect a very small number of children. The Taoiseach’s comments broadly reflect the Continue reading “The Children's Referendum: The Oireachtas Debates”

The Children's Referendum: The Oireachtas Debates

The Children's Referendum: Donnelly on the Referendum Process

Human Rights in Ireland welcomes guest contributor, Sonya Donnelly. Sonya is a practicing barrister who also lectures in Dublin Business School. She has spent the last year in Africa working as a project coordinator with Irish Rule of Law International on an access to justice project focusing on pre-trial detention in Malawian prisons.  She has written extensively on criminal justice issues and co-wrote a legal text for first year barristers, The Devil’s Handbook. In this post Sonya outlines the Referendum process as part of the Children’s Amendment Blog Carnival.

On Saturday, the 10th November 2012 you are being asked to vote in a referendum which concerns changes to the Constitution in respect of the rights of children.  On the page below, I will set out a short description of some of the key terms of relevance to the referendum process in order to give you a greater understanding of how this process will work.

What is the Constitution?

The Constitution is the fundamental legal document that sets out how Ireland should be governed. The Oireachtas cannot introduce laws in Ireland that are inconsistent with what is stated in the Constitution. Therefore it is sometimes necessary to change the Constitution and this is done by holding a referendum.

What is a referendum?

A referendum is a vote by the people of Ireland on a proposed amendment to the Constitution. A referendum gives the people the opportunity to express their opinion and vote for or against the proposed change. If a simple majority vote yes the amendment is approved and the appropriate words in the Constitution are removed and/or inserted. If a simple majority vote no then the Constitution remains unaffected.

What is the process for a referendum in Ireland?

In order to call a constitutional referendum, Continue reading “The Children's Referendum: Donnelly on the Referendum Process”

The Children's Referendum: Donnelly on the Referendum Process

Yet Another Draft Text for the Children's Referendum Amendment?

Today’s Irish Examiner reports that a new wording for a children’s rights referendum is now being drafted by the Attorney General.

According to the report,

Taoiseach Brian Cowen told the Dáil that the all-party consensus and the wording resulted in a “range of unintended policy and resource implications”.

The suggestion that the wording proposed by the Oireachtas Committee on the Constitutional Amendment on Children gives rise to a number of implications that were previously unforeseen by government seems highly surprising given the involvement of government party representatives in the Committee’s work, including the drafting of the proposed wording. Indeed, given the time already spent by the Committee on the drafting, it is disappointing and frustrating that its work appears to have simply been set aside only for the ‘drafting process’ to be assumed by yet another actor – this time, the AG. Continue reading “Yet Another Draft Text for the Children's Referendum Amendment?”

Yet Another Draft Text for the Children's Referendum Amendment?

De Londras and Kelly's 'European Convention on Human Rights Act: Operation, Impact and Analysis'

Since the European Convention on Human Rights Act 2003 came into effect in December of that year, it has perhaps had less of an impact on Irish litigation and on the politico-legal processes of the State than some might have anticipated or hoped for. However, the Act has created a potentially transformative system for the protection of rights originating in the Convention and based domestically in the statute. As such, it deserves a detailed consideration, and that is what this book by Fiona de Londras (UCD) and Cliona Kelly (NUI Galway), European Convention on Human Rights Act: Operation, Analysis and Impact provides. Although the greater part of this work centres on the obligations and remedies under the Act, the authors also address the largely neglected, but crucial issue of the roles that the Act envisages for important constitutional actors (such as the Attorney General) and statutory bodies (such as the Irish Human Rights Commission). Continue reading “De Londras and Kelly's 'European Convention on Human Rights Act: Operation, Impact and Analysis'”

De Londras and Kelly's 'European Convention on Human Rights Act: Operation, Impact and Analysis'

de Londras on De Valera's Constitution

Regular contributor Dr. Fiona de Londras has written in the Irish Times today on the continuing debates on the relevance of the Irish Constitution to modern Irish society.

de Londras states:

Recent contributions in these pages and elsewhere on the renewal of our Republic have focused to a great extent on our Constitution. In the main, they have focused on the text of the Constitution, claiming that changing the document itself will be sufficient to cure all ills. Rewriting the Constitution will not solve everything. In fact, it might not solve anything at all. If we want true change in how our country operates and the values it places on limiting governmental power, respecting individual rights and securing economic stability for all, then we must look to ourselves and our own conceptions of what the State and our elected representatives do for us.

The full article can be accessed here. Fiona’s previous blog posts on Irish constitutional reform can be accessed here, here, here and here.

de Londras on De Valera's Constitution

The Labour Party's "One Ireland" and a Constitutional Convention

Last night Éamon Gilmore gave the leader’s address at the Labour Party’s annual conference. Entitled ‘One Ireland’ the conference has had a distinctive emphasis on moving forward, as a country, away from what is conceived of as broken or corrupt and towards a more mature political life in this jurisdiction. The Gilmore speech, which can be watched in full here or read here, was extremely strong on this theme and—regardless of the colour of one’s politics—is worth watching or listening to as an exercise in oratory and speech writing. What struck me in particular, however, was the proposal by Gilmore that there would be a constitutional convention with a new constitution being ready for enactment in 2016 (at the centenary of the 1916 Rising).

I have written before on HRinI of my anxiety about populist constitutional reform. What Gilmore suggested seems to have been something at once more radical and less populist than what we have seen proposed by Fine Gael recently. Gilmore suggested that we would establish a constitutional convention made up of experts and a randomly selected portion of the community (he did not mention how large the sample would be) to debate and propose new constitutional structures. The justification given for this was that the Constitution is a document written in the 1930s for the 1930s when there was considered to be one Church in Ireland and one role for women (I am paraphrasing but, as you will hear if you listen to the speech, not by much). Similar themes were recently in evidence at the excellent political cabaret, Leviathan, which suggested a new Constitution and Second Republic earlier this year. Fine Gael’s New Politics which we have written about before suggests some major constitutional reforms but does not suggest a whole-scale redrawing of the Bunreacht. Continue reading “The Labour Party's "One Ireland" and a Constitutional Convention”

The Labour Party's "One Ireland" and a Constitutional Convention