Irish Community Development Law Journal: Focus on Social Welfare Law & Rights

CLM logoOn International Human Rights Day 2014, Community Law and Mediation has published volume 3(2) of the Irish Community Development Law Journal. This edition has a special focus on social welfare rights. Contributors to this edition include:

Mary Murphy, Ireland’s Lone Parents: Social Welfare and Recession

Liam Thornton, The Rights of Others: Asylum Seekers and Direct Provision in Ireland

Pia Janning, Ireland’s Economic, Social and Cultural Rights Obligations and Budgetary Policy

Rosemary Hennigan & Molly Joyce, Public Interest Litigation & Access to the Courts: As Far as Practicable? 

You can access the full text of these articles here.

Irish Community Development Law Journal: Focus on Social Welfare Law & Rights

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

9780415836937A new book entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’ published by Routlegde will be launched on the 12th of December 2014.  The book edited by Prof Gerard Quinn (NUI Galway), Dr Aisling de Paor (Dublin City University) and Prof Peter Blanck (Syracuse University) will be launched by Marian Harkin MEP at the European Commission Representation Office, Dawson Street, Dublin.

The book is timely as genetic technologies advance, genetic testing may well offer the prospect of detecting the onset of future disabilities. Some research also forwards that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed, or the propensity for risk-taking. As this technology becomes more prevalent, there is a danger that that genetic information may be misused by third parties and that particular genetic profiles may be discriminated against by employers, by providers of social goods and services, such as insurance companies and even by educational facilities.

This edited book explores the different forms and potential uses of genetic testing. Drawing together leading experts in disability law, bioethics, health law and a range of related fields, it highlights the ethical and legal challenges arising as a result of emerging and rapidly advancing genetic science. On examining transatlantic perspectives on the matter, chapters in the book ask whether the US Genetic Information Nondiscrimination Act (GINA) is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating fears of discrimination. The book also reviews what insights may be gained from GINA within employment and health insurance contexts, and asks how the UN Convention on the Rights of Persons with Disabilities (CRPD) may impact similar debates within the European Union. The book focuses particularly on the legislative and policy framework in the European Union, with an emphasis on the gaps in protection and the scope for specific legislative action in this area.

This book will be of great interest to scholars and students of discrimination law, bioethics and disability law, and will be of considerable use to legal practitioners, medical practitioners and policy-makers in this area.

The launch will take place on the 12th December 2014 at 5pm at the European Commission Representation Office, Dawson Street, Dublin.  If you are interested in attending please RSVP mary.faherty@nuigalway or telephone 091 – 495888.

You can order a copy of the book here.

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

CCJHR Seminar: ‘Abortion Secrecy / Abortion Privacy – What’s the difference and why does it matter?’

CCJHRProfessor Carol Sanger, Barbara Aronstein Black Professor of Law,

Columbia University, NY

Discussant: Máiread Enright, University of Kent / UCC

June 6th 2014, 9.15am – 11am

Venue: Moot Court Room, 1st floor, Aras na Laoi,

(Law Faculty, U.C.C.)

 

Advance booking is not required. Continue reading “CCJHR Seminar: ‘Abortion Secrecy / Abortion Privacy – What’s the difference and why does it matter?’”

CCJHR Seminar: ‘Abortion Secrecy / Abortion Privacy – What’s the difference and why does it matter?’

Public Interest Law Alliance: Driving the law into activism and activism into law

PILAEithne Lynch is a solicitor who qualified with Matheson before leaving to work on a number of ‘access to justice’ projects in sub Saharan Africa. Eithne now works with the Public Interest Law Alliance (PILA) as their Legal Officer. PILA is a project of FLAC (Free Legal Advice Centres), an independent human rights organisation dedicated to the realisation of equal access to justice for all. 

Public Interest Law Alliance: Driving the law into activism and activism into law

In late March PILA held a major public interest law conference in Dublin, which highlighted the growth in use of law by social justice organisations. Entitled Using the Law to Challenge Injustice, PILA brought together lawyers, members of the judiciary, social activists, policy makers, politicians and students under one roof to develop public interest law ideas.  Over 400 people came together with one common aim; access to justice in Ireland must be universal, that everybody counts.

The conference’s keynote speech was delivered by former South African Constitutional Court Justice Albie Sachs. Justice Sachs was an anti-apartheid activist, and is a pioneer in the constitutional recognition of human rights. The conference was opened by Ms Joan Burton TD, Minister for Social Protection. In her address she said that the use of law by Justice Sachs and his colleagues to overcome a tyrannical system is an “exhilarating example of the law put to the greatest possible use to the benefit of a persecuted, marginalised and disadvantaged people”.

In his keynote address, Justice Sachs spoke of his initial involvement with the South African freedom movement as a young lawyer, and the beginnings of the Free Nelson Mandela campaign. He also described how, after Mandela’s release from prison, activists rolled out legal strategies to quickly advance public interest law issues.

As a Constitutional Court Judge, he was involved in several judgements that were ground-breaking for common law jurisdictions like Ireland, including S v Makwanyane (1995) http://www.saflii.org/za/cases/ZACC/1995/3.html which abolished capital punishment, the Grootboom case (2000) http://www.saflii.org/za/cases/ZACC/2000/19.html which found the State had a duty to provide adequate housing, and Minister of Home Affairs v Fourie (2005) http://www.saflii.org/za/cases/ZACC/2005/19.html which found it was unconstitutional to prevent same-sex couples marrying.

PILA invited Justice Sachs to speak at this conference to inspire attendees; that anybody – not just the elites – can use the law to change society, and to ignite a passion for using the law to create real social change.  You can watch Justice Sachs’ address here. Justice Sachs drew parallels between the vibrant NGO community in South Africa and Ireland. Justice Sachs said that “freedom is something you feel, is part of your culture, your temperament, the way you see the world”; it is woven into the fabric of a society. Freedom once obtained must be nurtured; protected and vindicated by a robust legal system.  He recounted how as a judge sitting on the South African Constitutional Court, the more controversial the issue was, the more important it was to have advocates presenting solidly researched material and arguments – thereby assisting in the development of jurisprudence on strong foundations. To achieve this, collaboration between front line social activists and legal experts is crucial.  Justice Sachs praised the ability of civil society organisations to bring an independent voice to court and to focus on the wider social implications a case may have.

With the challenge set, a plenary panel discussion considered the potential of public interest law to create real social change.  The members of that panel were FLAC Director-General Noeline Blackwell; the PILS Project’s Gerry Hyland; FLAC Chairperson Peter Ward SC; Trinity College Dublin Associate Professor Gerry Hyland and Seanad Eireann Senator Katherine Zappone. The panel reflected on Albie Sachs’s keynote address, and lessons that could be applied from the South African experience to Irish human rights and public interest practice. Senator Zappone recounted her experience of challenging the failure of the Irish government to recognise her marriage to Ann Louise Gilligan.  Senator Zappone spoke of the challenges of navigating the Irish legal system, the long process and the barriers that they had come up against.  Peter Ward SC talked about the role of PILA and how the progress it has made in the area of public interest law needed to be fostered and protected even in an uncertain funding environment.

The afternoon session of the conference featured four breakout sessions, where attendees engaged in practical discussion and learning on pro bono work, helping civil society organisations to use the law, ombudsmen and alternative routes to justice and clinical legal education. Without exception each breakout session raised difficult questions and led to lively and engaged debates on the core topics under discussion.

The session on pro bono work illustrated the difficulty with accessing the courts by civil society and individuals, with costs remaining a huge barrier. While flaws in the civil legal aid system were acknowledged, it was also pointed out that there are areas of unmet legal need that could potentially be addressed through pro bono legal work.  The panel was chaired by Miriam Buhl of US law firm Weil Gotshal, who was joined by David Hillard, Pro Bono Partner with Clayton Utz. The two international lawyers shared with the attendees the approach to pro bono legal services in the US and Australia respectively.  The ensuing discussions revealed that no one size fits all and that approaches to pro bono legal services in Ireland are still evolving and developing!

The consensus which came out of the breakout session with NGOs was the vital importance of working with other organisations to share knowledge and advance a position on particular areas of law reform. In terms of using the law, many of those present expressed frustration that legal cases take so long, so the initial starting of the momentum for law reform is very important. Associated with this, it takes a substantial amount of time for NGOs to build the confidence and know-how which may eventually lead to law reform.   It can be scary for an organisation – big or small – to even contemplate litigation, but the group talked about other ways to effect change, such as advocacy backed by solid legal briefings.  Indeed, it was remarked that over the past four years PILA has proven itself adept at facilitating exactly this type of collaboration. Separately, the point was raised by a number of organisations that it is very important to bring legal actions even if they don’t ultimately win, particularly because it can be a platform to raise awareness of issues and how their client groups are affected. The example of litigation around transgender rights was discussed as a prime example, as the Foy case has raised awareness of transgender rights generally and to a wider audience. Law is an important weapon to help marginalised groups ensure their rights are respected, especially where there is no political will for law reform to benefit smaller groups within society.

The session on alternative routes to justice was chaired by Dr Carol Coulter of the Child Care Law Reporting Project with Carmel Foley of the Garda Ombudsman’s Commission joined by representatives from the offices of the Children’s Ombudsman and the Ombudsman.  The session was highly interactive with many attendees highlighting the confusion over to which office to address a complaint. There was criticism of how an office decides which the most appropriate forum for a complaint is and how they should collaborate if needed. The session also highlighted general public confusion about what office covers what issues and what public bodies and also about what stage the ombudsman can be approached. If these alternative routes to justice are to become truly accessible, it was suggested, better guidance must be provided.

The session on clinical legal education was chaired by Larry Donnelly, Lecturer NUIG with the panel comprising of undergraduate students from a cross section of universities around Ireland. The session enabled the exchange of ideas and approaches to clinical legal education and to inspire future lawyers to embrace public interest law as an inherent part of their professional duties when they proceed into practice.

The conference concluded with a lively round-up panel hosted by journalist and broadcaster (and barrister) Vincent Browne, where some challenging questions were put. The conference was a great success, with the capacity crowd illustrating the strength of the public interest law movement in Ireland.  The impact of PILA in contributing to this development is unquestionable – over the past four years, its pro bono referral scheme has facilitated more than 200 legal referrals for organisations as well as arranging dozens of legal education sessions and law reform working groups focused on using the law for the benefit of people living with disadvantage.

Visit www.pila.ie to watch the keynote address given by Justice Sachs and view coverage of the event.

Public Interest Law Alliance: Driving the law into activism and activism into law

PhD Scholarship in Law – DCU

DCU_logo 2013A generous 4-year scholarship is available for an outstanding PhD candidate in the field of Law, within the School of Law and Government at Dublin City University. The scholarship will include fee waiver and a tax-free stipend of up to €15,000 per annum for a full-time PhD student. The School also supports its PhD students with funding for conference and research travel.

Members of staff have specific research areas, listed below, in which they would like to prioritise PhD research. Potential applicants should make informal contact with the member of staff whose research area covers their proposed doctoral work before formally applying for consideration.

Member of Staff Research Areas
Dr Brenda Daly right and access to healthcare; healthcare law; mediation
Dr Yvonne Daly criminal evidence; criminal justice
Dr James Gallen public international law; human rights; jurisprudence
Dr Tom Hickey constitutional law and political theory
Dr Adam McAuley medical law and ethics; research on disciplinary mechanisms for health care professionals; family law; child law; judicial politics
Dr Cliodhna Murphy immigration and asylum law; human rights
Dr Roderic O’Gorman EU constitutional law; EU citizenship; Fundamental rights under EU Law
Dr Olivia Smith work-care reconciliation; caring and the law; equality and discrimination law

 

Following informal consultation with the relevant staff member, applicants should send a full CV and 1500-word PhD proposal to Dr Yvonne Daly (yvonne.daly@dcu.ie) by 5pm, Monday August 26th.

DCU offers a number of Graduate Training Courses which the successful applicant may attend. The successful applicant will be expected to provide some teaching within the School of Law and Government and to contribute fully to the life of the School. The successful applicant will benefit from career mentoring and professional advice from the academic legal experts within the School. For more on Law at DCU see the website of the Socio-Legal Research Centre.

 

PhD Scholarship in Law – DCU

The Rich Legacy of Ronald Dworkin: 1931-2013

We welcome this guest post from Dr. Tom Hickey a lecturer in the School of Law at NUI Galway.  In this guest post Dr. Hickey reflects on the work of Ronald Dworkin.  Dr. Hickey lectures in the areas of constitutional law, jurisprudence and administrative law at NUI Galway.

The passing last week of Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence at University College London, will have struck a chord with many in the academic human rights community. With contributions such as Taking Rights Seriously (1977), Law’s Empire (1986) and Sovereign Virtue: The Theory and Practice of Equality (1996), Dworkin stands amongst the most influential legal philosophers of the past few centuries. The scope of his work is considerable, but his most enduring legacy is likely to be his theory of adjudication: his account of how judges decide “hard cases.” On this question Dworkin challenged his great 20th century rival H.L.A. Hart (and Legal Positivism generally) by insisting that there is a necessary connection between law and morality. This connection, Dworkin argued, is attributable to the fact that in engaging in the process of adjudication judges necessarily draw on moral considerations. They do so not because of some irresistable impulse on their parts to change the law so that it better fits with their own moral or political tastes but rather because drawing on evaluative considerations is an unavoidable part of any interpretive enterprise, whether it be interpreting a piece of literature or art, a particular social practice, or a set of legal provisions.

Dworkin was a master of the punchy phrase or analogy. He used the image of a right as a “trump card” that automatically defeats cards from other suits as a means of explaining his account of rights as special claims that defeat ordinary political claims based on utilitarian calculations.  Similarly in respect of his argument concerning “constructive interpretation” and how judges decide cases: he frequently used productions of great plays as an illustration.

And so how do we interpret social practices or texts? Imagine you are a music teacher in a secondary school tasked with putting on a version of West Side Story. You must interpret that musical. This is quite a task, given that it is based on a book written by an author, with music written by someone else, lyrics by another, and choreogrpahy by yet another!

You would probably begin by familiarising yourself with the text and the music. You could not reasonably claim that yours was a production of West Side Story if you had instructed your actors to act lines from The Sound of Music. As well as using the text, you will probably consider previous productions of West Side Story. In fact these previous productions will heavily influence your decisions – both consciously and otherwise – as you set about your task. In other words, in putting on the production you will have fidelity to the text and music as well as to previous interpretations. Continue reading “The Rich Legacy of Ronald Dworkin: 1931-2013”

The Rich Legacy of Ronald Dworkin: 1931-2013

Symposium "Privacy from Birth to Death and Beyond: European and American Perspectives"

The LL.M. in Public Law and the LL.M. in Law, Technology and Governance at the School of Law, National University of Ireland Galway will run a half day symposium on 8 March 2013 in Galway.  The title of the symposium “Privacy from Birth to Death and Beyond: European and American Perspectives”. The speakers include Mr. José Maria Baño  who will give a paper on the “ECJ “The Right to be Forgotten” reference”.  Professor Joshua Fairfield from the Washington and Lee University School of Law who is currently in Europe on a Fulbright scholarship will give a paper entitled “Do-Not-Track as Default: Transaction Costs in U.S. Consumer Privacy”. Mr. Damien McCallig an Irish Research Council Scholar at the School of Law NUI Galway will give a paper on the concept of privacy after death.  Dr. Sharon McLaughlin from Letterkenny Institute of Technology who is a member of the EU Kids Online Network will give a paper entitled “Children & Privacy: Protection v. Participation – A Tangled Web” . Paul Lambert a solicitor with Merrion Solicitors will give a paper that explores privacy in legal practice across of issues including cyberbullying, defamation, and data protection. Dr. Ciara Hackett from the School of Law Queens University Belfast  will deliver a Rapporteur’s Report on the proceedings of the conference.  For more information and to register for the conference please see here.  The conference fee is €50 to attend, there is a discounted rate of €25 for early career practitioners (5 years or less) and free for students or unwaged.

 

Symposium "Privacy from Birth to Death and Beyond: European and American Perspectives"

Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland

We are delighted to welcome this post from Dr Ciara Hackett. Ciara joined the School of Law at Queens University Belfast in August 2012, prior to that she held a teaching and research fellowship at the School of Law, National University of Ireland Galway.  Her research explores a diverse range of issues in the areas of regulation, corporate governance and corporate social responsibility as well as legal theories of development.  She is currently engaged in a number of projects in the areas of Corporate Social Responsibility, Tort Law and Corporate Governance.

Queues, carols, mince pies, mulled wine and….protests? Belfast (and indeed large portions of Northern Ireland) has come to a standstill in the weeks and days leading up to Christmas, not due to crowds of festive shoppers but rather for daily protests over the decision, earlier this month, to remove the Union flag from its daily perch over City Hall, instead, limiting its flying to designated days in keeping with the rest of the UK.

The wrath of daily commuters (on both sides of the religious divide) surrounds the fact that these protests are blocking their route home. The challenge to the law therefore, is in balancing the protestors right to protest (as protected by Article 10 of the European Convention on Human Rights and Articles 10 and 11 of the Human Rights Act 1998) with causing an obstruction amounting to a Public Nuisance.   The tort of nuisance broadly conceived is described as the interference with another’s rights.  Concerned not with the prohibition of a certain act, the tort instead protects the claimant from an unreasonable interference with rights.  The idea of Public Nuisance is more recent manifestation concerning itself with the protection from unreasonable interference with rights which are common to all.  Described first in the UK in the judgment of AG v PYA Quarries [1957] 2 QB 169, the judgments of Lord Romer and Lord Denning are most relevant.  Romer defined public nuisance as that which affects materially the reasonable comfort and convenience of a class of her majesty’s subjects.  Endorsing Lord Justice Romer, Lord Denning goes further, stating that it is the “responsibility of the community at large to put a stop to unreasonable activity”.

As a public tort, the AG litigates on behalf of the community at large, unless it can be proven that the plaintiff/claimant has suffered “special damage”.  Defined within the UK and Ireland as damage which is appreciably more serious than that suffered by the general public, Smith v Wilson [1903] 2 IR 45 illustrates its application in Northern Ireland.  Developments in the UK have suggested that personal injury also comes within the confines of Public Nuisance, therefore distinguishing it quite significantly from the tort of Nuisance as more broadly understood (See Corby Group Litigation v Corby Borough Council [2009] EWHC 1944).  Public Nuisance covers obstructions to the highway via marches and pickets.  In short, the protests do amount to a Public Nuisance.  However, as to whether or not it is actionable will depend on the interpretation of the courts on the relationship between Public Nuisance and Freedom of Expression Rights and the associated right to Continue reading “Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland”

Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland

Law Society of Ireland & IHRC Annual Human Rights Conference

This October, the Irish Human Rights Commission (IHRC) and the Law Society of Ireland will host the 10th Annual Human Rights Conference, Promoting and Protecting Human Rights in Ireland: The Role of the Irish Constitution and European Law.  The conference will examine the impact of the Irish Constitution, the European Convention on Human Rights and EU law in advancing human rights protection in Ireland. The role of Irish courts, quasi-judicial and administrative bodies will also be considered. When: Saturday, 13th October, 2012, 10:00- 14:30pm – Where: The Presidents’ Hall, Law Society of Ireland, Blackhall Place, Dublin 7 – Fee: There is no charge for this event. Booking: While attendance at the Conference is free, it is important to book your place as space is limited, by emailing: humanrightsconference@lawsociety.ie

Speakers include:

  • Mr. Justice William McKechnie, Supreme Court,
  • Ms. Justice Mary Laffoy, High Court,
  • Dr. Síofra O’Leary, Court of Justice of the EU and Visiting Professor at the College of Europe,
  • Mr. Michael O’Boyle, Deputy Registrar, European Court of Human Rights,
  • Dr. Hannes Krämer, Legal Service, European Commission,
  • Ms. Emily O’Reilly, Ombudsman, Ms. Emily Logan, Ombudsman for Children,
  • Ms. Barbara Nolan, Head of EC Representation in Ireland,
  • Mr. Gerry Durcan SC,
  • Dr. Dympna Glendenning BL,
  • Mr. Mark Lynam BL,
  • Mr. James MacGuill, MacGuill Solicitors,
  • Mr. Des Hogan, IHRC,
  • Ms. Sinead Lucey, IHRC,
  • Ms. Anna Austin, European Court of Human Rights,
  • Mr. Patrick Dillon-Malone BL,
  • Dr. Suzanne Kingston BL, UCD,
  • Ms. Síle Larkin, the Equality Tribunal and
  • Mr. Kieran Fitzgerald, the Garda Síochána Ombudsman Commission.


Law Society of Ireland & IHRC Annual Human Rights Conference

Ruggie, Rights and Regulation: Ireland and UN Framework on Business and Human Rights

We are delighted to welcome this Guest Post from Dr. Ciara Hackett.  Ciara is a lecturer in the School of Law at NUI Galway where she also serves as Deputy Director of the LL.M in Public Law.  Her research interests include corporate social responsibility, corporate governance, globalisation and marxist theories of development.

In 2011, Ireland signed up to the United Nations Framework on Business and Human Rights (Ruggie Principles) (see here).  The initial aim of the framework was to ensure that companies have the same obligations and range of duties under International Human Rights Law as states, namely “to promote, secure the fulfilment of, respect, ensure respect of, and protect human rights.”  The only distinctions made between the two seems to be that states have a “primary” duty and companies have a “secondary” duty.

The framework rests on three main pillars.  First is States’ duty to protect against human rights abuses by third parties, including business enterprises through appropriate policies regulation and adjudication.  The second is the corporate responsibility to respect human rights (i.e. avoid infringing on rights and address adverse impacts) and finally the need for access by victims to remedy (para. 6).

Reactions to the principles suggest that the framework is a weak formulation and does not go far enough (see here).  Addressing this framework in the context of the on-going financial crisis and indeed the particular case of Ireland raises some questions as to the effectiveness of the framework or indeed whether or not the aims are realistic.  In particular this post refers to the foundational principles of the framework: that states must protect against human rights abuse in particular through effective policies, legislation and regulations.  This requires a re-imagining of the current Irish regulatory framework for addressing the responsibilities of business.

As society endeavours to emerge from the economic crisis, governments are faced with a balancing exercise between retaining or achieving a desired competitiveness in a post recessionary era and developing regulatory structures to ensure that the same problems do not occur again.  For states like Ireland the problem is more ingrained, stemming from the nature of an economy that was for so long Continue reading “Ruggie, Rights and Regulation: Ireland and UN Framework on Business and Human Rights”

Ruggie, Rights and Regulation: Ireland and UN Framework on Business and Human Rights