In his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at ): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at ) as “a national interest of the first importance”. Continue reading “Rule of Law v National Security: The Big Fight Live”
This opinion piece first appeared on KOD Lyons blog on Friday, 11 October 2013. KOD Lyons in a human rights and criminal law firm based in Dublin, with substantial expertise in immigration and asylum law.
The system of direct provision is 13 years old this year. In April 2000, the system was established as a means of dealing with the relatively large numbers claiming asylum, which it was argued, was leading to accommodation shortages, particularly in the Dublin area. Some 13 years later, despite a huge fall in the numbers claiming asylum and a change in government, the system of direct provision remains intact. Over those 13 years, asylum seekers, migrants, non-governmental organisations, politicians of various hue, lawyers and academics have constantly highlighted the horrific conditions of enforced poverty in direct provision, hoisted upon asylum seekers exercising their legal entitlement to have their claims for refugee/subsidiary protection/leave to remain determined.
In light of Carl O’Brien’s series of articles on direct provision in the Irish Times, the plight of those forced to spend many years in this system, has once again highlighted the significant problems with direct provision. The response of the Minister for Justice, Alan Shatter TD is minimal at best. While welcoming the publication of inspection reports (as long as it includes all inspection reports over the last 13 years), this does not deal in anyway with the significant amount of time asylum seekers in Ireland are condemned to the modern day migrant Magdalenes’ of Ireland. The reliance on a supposedly faster system for determining protection claims in the (yet to be seen) Immigration, Residence and Protection Bill is not good enough.
The Northern Ireland High Court has already refused to return a Sudanese family to Ireland on the basis that the best interests of the child members of this family would not be protected in Ireland. Given the porous border between Ireland and Northern Ireland, the Ministers for Justice and Social Protection should take note. In the Irish High Court, a challenge to the system of direct provision is currently underway and working its way through the court.
The approach of successive governments since 2000 to the social and economic rights of asylum seekers has shown scant regard to any notion of the rule of law operating within the system of direct provision or in the social welfare system generally. There is no legislative basis for the direct provision system and the derisory payment of €19.10 per week per adult asylum seeker (€9.60 per child) made by the Department of Social Protection is outside its powers, as they are legislatively barred from making such regular weekly payments as a supplementary welfare allowance payment, due to the habitual residence condition.
The assault on the rule of law as a constraint on government power continues. The assault on human dignity by the system of direct provision also continues. It remains to be seen whether the current court challenge to the system of direct provision will bring about a situation where the socio-economic rights of asylum seekers are respected by Ireland. For now, asylum seekers coming together themselves, human rights organisations like the Irish Refugee Council, Nasc, the Irish Immigrant Support Centre, the Free Legal Advice Centres and Doras Luimní continue to highlight the inherent injustice, unfairness and inhumanity of the direct provision system. Lawyers, practicing or academic, with an interest in ensuring the rule of law and human rights, trump unrestrained government power, need to add their voices to call for an end to the direct provision system.
The rule of law is an important concept in most western democracies, however precisely what it means is hotly debated. The former Law Lord, Lord Steyn, described it as follows:
For my part two core meanings of the rule of law are essential to an understanding of our public law…The rule of law is a term of political philosophy or institutional morality. It conveys the idea of government not under men but under laws….In its second sense…its general focus is to constrain the abuse of official power. It protects a citizen’s right to legal certainty in respect of interference with his liberties. It guarantees access to justice. It ensures procedural fairness over much of the range of administrative decision-making by officials.
Whereas Judith Shklar has suggested that the expression ‘rule of law’ is meaningless and
…may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter
While debates over the exact meaning of the rule of law will continue over the last number of days there have been heightened tensions between the Government and the judiciary as regards a number of key issues that raise questions as regards the rule of law in Ireland. These issues first came to light in an article on a speech by Mr Justice Kelly as reported in the Sunday Business Post (Broadsheet has picture of this here). At the core of Mr Justice Kelly’s remarks was the argument that judicial independence in Ireland is being demolished ‘brick by brick’, due to the implementation of measures arising from the judicial pay referendum and proposals on appointment for specialist personal insolvency judges under the Personal Insolvency Act 2012. A statement by the Association of Judges of Ireland (AJI), has re-emphasised these key points and also noted concerns with on forthcoming referenda that will impact on judges: abolition of the Seanad and impact on removal of judges and establishment of specialist family courts. No mention is made of the proposed Court of Appeal. Continue reading “The Rule of Law, Judicial Independence and Ireland”
On Saturday, 2 March 2013 the Department of Justice and Equality hosted a seminar on Constitutional Reform in relation to the Courts in Ireland. While the need for such reform is quite clear, it is surprising that there is not a similar impetus to ensure access to justice for all in Ireland. The Programme for Government of the Fine Gael and Labour coalition gave a commitment to create a permanent Civil Court of Appeal and the establishment of a distinct and separate family court. Referenda will be held in the Autumn on proposals to reform some of the current court structures. The impetus for such reform is set out in Minister Shatter’s speech delivered to the seminar. Long delays in the Supreme Court and the the cost to individuals and business in having such long waiting times for disputes to be ultimately determined is a core driving factor for this reform. Minister Shatter also noted Ireland’s obligations under Article 6 of the European Convention on Human Rights (right to speedy determination of disputes) and the domestic transposition measure, the European Convention on Human Rights Act 2003. The Chief Justice, Susan Denham, in her contribution echoed the sentiments of Minister Shatter noting:
The current situation in the Supreme Court and the Court of Criminal Appeal is unsustainable, it is untenable, it cannot be defended. An appeal certified as ready yesterday is in danger of not getting a date for hearing until mid 2017. The most recent appeals from the general list that have been given dates were certified in July 2008. All other things being equal and without any measure of priority, an appeal certified as ready yesterday is in danger of not being given a date until mid 2017, effectively a four and a half year waiting time.
Denham CJ’s speech was reported widely in the media (see here, here, here and here). One of the interesting aspects to this reporting was the focus on how effective systems of adjudication and dispute resolution is needed as it may damage Ireland’s economy into the future. While not quite a rallying call for “the best small country in the work in which to do business” Continue reading “The Rule of Law and Access to Justice in Ireland”
Some readers may be interested in the recent publication of my monograph, EU Counter-Terrorism Law: Pre-emption & the Rule of Law. The book is the first sustained study of EU legislation in the field of counter-terrorism. It critically examines EU counter-terrorism measures to ascertain how rule of law principles have been affected in the ‘war on terror’. The book opens with an overview of the “war on terror”. It notes that the trend in both the UK and US
has been towards pre-emptive intervention that attempts to eliminate threats to national security before they arise. Building on twentieth-century ideas of risk and actuarial justice, these trends undermine traditional legal protections by shifting the target of law enforcement from acts already committed to action that may be committed in the future.
The book seeks to assess how these developments have had an impact on the rule of law. It develops a critical understanding of the EU rule of law and then goes on to analyse five key facets of EU counter-terrorism: Continue reading “Book Publication: EU Counter-Terrorism Law”
In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP  IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that
The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.
The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.
An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading “Damache and Constitutional Retrospectivity”
One of the most cutting criticisms of the International Criminal Court is that of imperialism, best captured in the cries that it is “A European Court for Africans.” This reproach is not always disinterested of course – the revival of anti-colonial language at the time of the Bashir indictment would have been more convincing was it not accompanied by Sudanese stonewalling over the Darfur atrocities. However, the Court makes the argument for globalised justice for itself when it attempts to dictate the course of bona fide national processes of criminal accountability. The prime example is its statement on the arrest of Saif Al-Islam Gaddafi, against whom warrants of arrest were issued by the Court in connection with the Libya situation by the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Ambassador Christian Wenaweser. He began in an unobjectionable manner, stating that “by arresting Saif Al-Islam Gaddafi the Libyan authorities have taken a major step towards ensuring accountability and due process rights and towards fulfilling their obligations under international law”, before commending Libyan authorities for their cooperation with the Court to date. He reminded his audience that under the Rome Statute, Libya retained primary jurisdiction over all crimes committed on its territory, but went on to say that “it must be ensured that Saif Al-Islam is tried in a court of law and in accordance with international standards. Should the Libyan authorities wish to try him in Libya, they can make the case before the Court that their national judicial system is willing and able to do so in an independent and impartial manner”. Philippe Sands in today’s Guardian argues that the new Libyan government is “bound by a legal framework: it cannot lawfully ignore the ICC judges and decide that Saif will be tried under local law. Unlike Iraq, where there was no international indictment of Saddam, the decision on Saif is not an exclusively Libyan affair. Continue reading “Saif From Harm? Wishful Thinking at The Hague”