School Admissions and the Equal Status Act

screenshot Irish Times headlineI have written a short piece for the Irish Times concerning school admissions and the Equal Status Act. The article has been published here. I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth.

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case. See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority).

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity.

The earlier stages are as follows:

Commentary on the High Court stage:

  • Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
  • Mel Cousins, “Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel” – http://works.bepress.com/mel_cousins/22
  • Page at Northern/Irish Feminist Judgments Project

I previously posted on travellers in County Clare and the Equal Status Act.

CCJHR Seminar – Children’s rights: The Proposed Constitutional Amendment

The Centre for Criminal Justice and Human Rights at UCC is pleased to announce the following seminar:

Children’s Rights: The Proposed Constitutional Amendment

Thursday April 15, 12.00-2.30 pm

Venue:

Room LG 52
Cavanagh Pharmacy Building
College Road
Cork

Speakers

The seminar will be chaired by Dr Ursula Kilkelly.

Light refreshments will be provided.

A limited number of places are available, so please register your interest in attending by e-mailing conor.omahony@ucc.ie.

2 Hours of CPD points are available for attendance at this event.

The UNCRC and the Politics of Children’s Rights Reform in Ireland

Dr Conor O’Mahony, CCJHR, UCC

For over two decades now, there has been a steady and growing body of expert opinion in Ireland calling for the constitutionalisation of children’s rights in general and the welfare principle under Article 3 of the UNCRC in particular. In 1993, the author of the Kilkenny Incest Investigation Report, Mrs Justice Catherine McGuinness, stated that the effect of Supreme Court jurisprudence on the interplay between Article 41 of the Irish Constitution and the statutory welfare principle is to “render it constitutionally impermissible to regard the welfare of the child as the first and paramount consideration in any dispute as to its upbringing or custody between parents and third parties such as health boards without first bringing into consideration the constitutional rights of the family.” In 1996, the Report of the Constitution Review Group specifically recommended the explicit statement of the welfare principle in the text of the Constitution, along the lines of Article 3(1) of the UNCRC. This call was echoed by the Children’s Rights Alliance in a report published the following year, and welcomed in 1998 by the UN Committee on the Rights of the Child , who recommended that the Irish Government take all appropriate measures to accelerate the implementation of the recommendations of the Constitution Review Group. Numerous reports and academic publications have continued to campaign for this reform.

This backdrop would suggest that there was broad agreement on the need to constitutionalise Article 3 of the UNCRC. However, the reform proposals that ultimately emerged from the All-Party Oireachtas Committee on the Constitution Tenth Progress Report: The Family in 2006 and the Twenty-eighth Amendment of the Constitution Bill are significantly weaker than the wording of Article 3 (see Kilkelly & O’Mahony, “The Proposed Children’s Rights Amendment: Running to Stand Still?” [2007] 2 Irish Journal of Family Law 19). The timeline of developments on this issue shows that political momentum and opinion, having agreed with the views of experts and academic commentators for a significant period of time, has more recently shifted away from a sincere commitment to ensure that children’s rights should be the subject of genuinely stronger constitutional protection. Something along the way has clearly caused the politicians, particularly in the two main political parties, to get cold feet.

The weak wording currently being proposed can be traced in part to some of the public submissions received by the All-Party Oireachtas Committee on the Constitution when preparing their Tenth Progress Report: The Family. The invitation for submissions put the question to the public: “Does the Constitution need to be changed in view of the UN Convention on the Rights of the Child?” 22 of the submissions reproduced in the appendices were in favour of enhancing the constitutional protection for children’s rights, generally by amending the Constitution to include a provision along the lines of Article 3 of the UNCRC. These submissions came from a variety of sources. Submissions from State agencies included the Irish Human Rights Commission, the Ombudsman for Children, the Adoption Board, the Heath Services Executive and the Department of Social and Family Affairs. Several of the political parties, including the Labour Party, were represented, as were organisations and charities working with children and youths such as the ISPCC, Barnardos, the National Youth Federation and the Irish Foster Care Association. The professional body for solicitors, the Law Society, also made a submission in favour of such an amendment, as did the main Protestant denomination, the Church of Ireland.

Set against this is a selection of 27 submissions which stridently opposed the constitutionalisation of children’s rights, or any part of the UNCRC, or any attempt to alter the balance of rights as between the family unit and individual members of the family. When the source of these submissions is examined, it can be seen that there is a striking degree of overlap in terms of the people and groups represented by them. 10 of the submissions which were reproduced on this side of the debate came from organisations expressly identified as religiously based. Three of these were from Catholic organisations: one from the Conference of the Religious of Ireland, an umbrella organisation representing 138 Catholic congregations in Ireland, as well as separate submissions from two other Catholic organisations. Three of the submissions opposing change that were reproduced in the Report were from Baptist organisations; two were from groups describing themselves as “Christian”, and one was from an Islamic organisation. Of the remaining 17, 12 of the organisations identified as either pro-family, pro-life or both. The motivations of these groups can almost exclusively be identified, expressly or by implication, as being religious in nature, and this impression of overlap gains strength by the use of almost identical and quite distinctive language in a number of the submissions.

On the specific issue of the UNCRC, many of the submissions display a lack of basic understanding of the Convention. The Society for the Protection of the Unborn Child (Northern Ireland) state in their submission that “[t]he Constitution offers greater protection of children’s rights than the CRC, since the Constitution explicitly recognises the right to life before birth… As the Constitution already provides stronger protection of the rights of children than the CRC, no amendment is necessary. [A253]” While it is true that the Irish Constitution provides stronger protection than the UNCRC for the unborn child, no reasonable interpretation of the Constitution – with its one vague reference to the “natural and imprescriptible right of the child” and its overwhelmingly parent- and family-orientated jurisprudence – could possibly construe it as providing stronger protection for the born child than the comprehensive scheme of rights set out in the UNCRC.

Such a lack of understanding, along with a healthy degree of suspicion and even outright hostility, is displayed in many of the comments made regarding the UNCRC. Descriptions of the Convention range from “bland” and “flawed” at the kind end of the spectrum, to the view that it “lacks moral credibility”, is “contrary to the best interests of the child” and has given rise to “outrageous” and “perverse” interpretations at the less kind end. The Muintir na nÉireann submission (which, in spite of the grandiose name of the organization, was written in the first person) stated: “I don’t think any views of the UN should be entertained with regard to the rights of the child while it actively promotes abortion as a means of birth control in third world countries. [A195]” The Christian Women’s Federation submission states that “[w]hile the Convention contains some good principles, we do not require to be told by international bodies how to bring up children. [A41]” The European Life Network stated that the UNCRC
has the potential to cause a range of problems, including to “forbid home schooling of children by parents” and “give children a ‘right to privacy’, which in practice gives children the legal right to tell parents not to interfere in their lives (and even make certain areas of their home off-limits to parents) [A63]”. Since these points are not in any way clearly stated in the Convention, and the Irish Constitution expressly protects the right of parents to educate their children at home, not to mention their property rights, it seems fair to describe this submission as far-fetched in the extreme.

What can be gathered from the submissions reproduced in the appendices to the All Party Oireachtas Committee’s Tenth Progress Report: The Family is that there is a well-organised and vocal lobby who are opposed to any attempt to strengthen the constitutional protection for children’s rights and best interests in Ireland by constitutionalising Article 3 of the UNCRC. The nature of the sources of the submissions and the content of some of them make it possible to question just how large this lobby is, given the degree of overlap between the submissions and the relatively small number of people represented by some of the organisations involved. It is perhaps also possible to question how well informed some elements of it are. Nonetheless, the lobby is not insignificant, and is certainly sincere in its views. The consequence of this is that the two main political parties, who cannot afford to alienate groups who identify themselves as religious, pro-family or pro-life, prefer to avoid the prospect of engaging in a very public and potentially bitter debate with voters that they wish to court.

As against this, the parties are also faced with an overwhelming body of expert opinion regarding the correct course of action, and – as the submissions made in favour of reform demonstrate – this side of the argument also enjoys significant support. Therefore the Oireachtas is trying to be seen to be responding to the calls for reform by putting forward an amendment; but, as the main parties are running scared of a vocal lobby opposing reform, the wording of the amendment currently being put forward is disappointingly weak and in its latest form changes nothing. In this sense, the Oireachtas is caught between two stools and risks satisfying neither party. A principled stance on the part of the Oireachtas is what is required at this crucial juncture: if an amendment is to be put to the people, then surely it should be one that offers a genuine prospect of change. This can only be achieved through putting forward an amendment that would genuinely address the imbalance between the rights of the child and the rights of parents and the family unit, through the constitutionalisation of the welfare principle in terms similar to Article 3 of the UNCRC.

The Pluralisation of Blasphemy law: Possible Constitutional Implications

This blog post was submitted by PhD candidate Eoin Daly, who is reading for a PhD under the supervision of Dr Conor O’Mahony. He is a Government of Ireland Research Council for the Humanities and the Social Sciences Scholar.

Following months of controversy surrounding blasphemous libel, the Defamation Bill 2006 has been signed into law. The question of the constitutionality of the offence of blasphemy therefore awaits the prosecution of a blasphemous statement, and judicial review by the superior courts. However, although Atheist Ireland has promised to immediately test the law, Dermot Ahern has bizarrely stated that it will be “practically impossible to get a successful prosecution” (Irish Times, July 10). It is indeed possible that the offence may remain shrouded, indefinitely, in a degree of constitutional ambiguity. Here, I briefly consider some of the arguments that have been raised concerning the constitutionality of the new offence. In particular, however, I focus on what I regard as the most interesting aspect of the new offence – the fact that is has been “pluralised”, encompassing material that is “grossly abusive or insulting in relation to matters held sacred by any religion.” This pluralisation of blasphemy law is underpinned by the ruling in Corway v. Independent Newspapers [2000] 1 IRLM 426. The Supreme Court held that the common law offence of blasphemy had not survived the enactment of the Constitution, since it only protected Christian beliefs. This implied that the constitutional mandate for a blasphemy offence had to be reconciled with the guarantee against discrimination on religious grounds contained in Article 44. Thus, what Corway and the recent legislation appear to signify is that blasphemy law has shifted from a religious to a secular legitimation, from the protection of a particular religious truth, to the protection of the sentiments of religious persons, of all recognised affiliations.

However, it is this very fact of a secular legitimation, of “outrage among a substantial number of [any religion’s] adherents”, which renders the contours of the offence unfeasibly vague. While the State is ostensibly removed from any role as an arbiter of religious truth, the determination of what is offensive to “any religion” necessarily involve the courts in an implausibly arbitrary inquiry as to the content of religious belief. While the offence is ostensibly justified in view of the secular rationale of protecting the sentiments of the believer, the content of individual conscience remains unascertainable; thus, even a “plural” blasphemy law could only be enforced through consultation of clerical authority. Furthermore, the “outrage” experienced by an individual believer is unascertainable to any external authority; this criterion is then inevitably determined with reference to some form of external orthodoxy. Therefore, the secular legitimation of blasphemy law, appealing notionally to the “rights” of those believers offended by attacks on their belief, is illusory. The offence transgresses an important boundary between the protection of the rights of the believer, and protection of religious belief or truth itself.

We know that the Constitution permits an offence of blasphemy, because it plainly states in Article 40.6.1º that “the publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law.” This does not, of course, mean that the offence in its current form is necessarily valid, not least given the Article 44 guarantees of freedom of religion and conscience. It is thus arguable that the offence creates a restriction which is broader than what is mandated by Article 40.6.1º

Firstly, it may be argued that Barrington J erred in the Corway ruling, and that Article 40.6 was in fact merely intended to give constitutional effect to the common law offence which protected only Christian belief – or, at most, that it warrants protection of the Abrahamic denominations originally enumerated in Article 44.1. Accordingly, the legislation would restrict speech relating to religion in a sense broader than that envisaged by the Constitution, and therefore violate freedoms of expression and of conscience. It is not implausible that Article 40.6.1º was historically intended in this limited sense; however, there is a broad consensus that this historical method of interpretation is inappropriate to provisions which engage “values and standards.” We should be less concerned with ascertaining the framers’ intent than rendering the most coherent contemporary account of the relevant provisions; in this lens, it is quite conceivable that the prohibition on religious discrimination implicitly requires the pluralisation of any blasphemy legislation.

Secondly, it might be argued that in targeting expression causing “outrage” against “any” religion, the legislation restricts religious speech which offends other religions, and therefore constitutes unwarranted interference in religious exercise. A Protestant preacher might cause “outrage” to Catholics by denigrating their sacraments in his sermons, and a restriction on this expression might constitute a restriction on religious conscience which is clearly not mandated by Article 40.6.1º. The freedom of all religions would be restricted by the sentiments of all others. However, the presumption of constitutionality probably means that the legislation could be read such as to exclude from its ambit speech which, although outrageous to other religions, was itself protected by Article 44.

Thirdly, Eoin O’Dell has recently argued (Irish Times, July 22) that the offence is of “dubious constitutionality” because it is not confined to outrage which threatens public order. However, his argument relies on English and ECtHR precedent rather than the constitutional text. Article 40 already permits restrictions on forms of expression conducive to public disorder; the mandate for a blasphemy law, particularly when read in light of the constitutional stipulation that “the homage of public worship is due to Almighty God,” clearly mandates a higher degree of protection for religious belief and sentiment. It is inconceivable that, given the privilege accorded to religion within the constitutional order, it warrants a blasphemy law only to the extent that is necessary to achieve secular goals such as public order, rather than the protection of religion itself. It is probably overly-optimistic to suggest that Article 40.6.1º only encompasses forms of expression causing tangible harm.

In suggesting that the provision may not, after all, be invalid under the current Constitution, I do not wish to suggest that it is coherent, necessary or desirable in a general sense. It is an anachronistic and cynical measure, but it almost certainly requires constitutional revision to be overturned. What I wish to stress here is that the pluralisation of blasphemy law is illusory, and that its enforcement will necessarily hinge upon deference to clerical authority rather than on the protection of individual conscience per se. Religions, rather than believers are protected; therefore, pluralised blasphemy law differs from its historical
precedent only in the plurality of religions protected, rather than in the object of protection. It is left to the courts to determine what is offensive to a “significant number” of adherents rather than to a given, individual believer. This inevitably requires protecting certain beliefs over others, and consecrating the contingent power relations prevailing between and within different belief systems, with more prevalent forms of belief attracting protection. On a final point, it should not be assumed that it is constitutionally impermissible for the Courts to consult religious authorities to ascertain the nature and content of religious belief, a measure which is implicitly necessitated by the blasphemy provision. In Quinn’s Supermarket v. Att. Gen. [1972] IR 1, the Supreme Court took such evidence from the Chief Rabbi of Ireland, in ascertaining whether Jewish religious practices warranted their exemption from laws of general applicability. Again, while the new offence likely protects religious authority rather than individual conscience, it incorporates a Catholic-centred view of religion, assuming the presence of a recognisable central religious authority which is competent to determine the content of doctrine and belief. The very fact of individual religious belief is, in itself, offered no protection against ridicule or abuse; it is instead, implicitly, only those beliefs which are buttressed by recognised clerical authority, as well as the sheer weight of empirical prevalence, which now receive the protection of the criminal law.

President signs the Criminal Justice (Amendment) Act and Defamation Act into law

The news just in is that the Criminal Justice (Amendment) Bill and the Defamation Bill have not been referred to the Supreme Court by the President. She has in fact signed them into law as of today. The issue of a referral arose under Article 26 of the Constitution which allows for the following:

1° The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.
2° Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature.
3° The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.

The Irish Times today reports that the Council of State met for three hours last night to consider the question of referral. So despite strong opposition to both pieces of legislation and real concerns raised regarding their Constitutionality we will have to wait to see if those problems are in the end litigated through the normal court process.
This was the fourth time in her 12 years in office that Mary McAleese has consulted the Council of State over concerns about proposed laws.
See some excellent discussion on this and its particular relevance for the Blasphemy laws, and more generally the controversy on the Defamation legislation by Dr Eoin O’Dell on his Cearta blog.

Criminal Justice (Amendment) Bill passes all stages of the Dáil

The governments controversial organised crime legislation has today passed through all stages of the Dáil with the final vote being 118 to 23. It will now go to the Seanad.

Final attempts to gain more time for debate were rejected by vote of 76-61. Fine Gael leader Enda Kenny had argued that the issues raised by the Bill were too serious to be “rammed through”. However, the government continued its claim that action was needed now. Tánaiste Mary Coughlan claimed that there had already been plenty of discussion on the issues and insisted that “delaying the Bill would represent a dereliction of duty, especially if something happened between now and the return of the House.”

What is it that might happen? Of course there is a good chance that we will see offences carried out by those involved with organised crime over the summer, but that will happen regardless of the passing of the legislation. So what would happen between now and September 16th that makes such a difference? Certainly not the operation of the new provisions once they are passed. The Courts are due to take their own summer break, rising at the end July for two months. Thus even if the Bill is passed now it will not become operational until after the Dáil returns from its summer holidays.

However, it appears that, as expected the Bill is now well on track to becoming law. We will therefore wait for the upcoming constitutional and human rights challenges that are bound to follow its implementation.

Constitutionality of Criminal Justice (Amendment) Bill 2009

This blog post was contributed by Dr Conor O’Mahony, member of the CCJHR.

Much of the media discussion surrounding the Criminal Justice (Amendment) Bill has centred around the question of whether the Special Criminal Court is an appropriate forum for the trial of gangland offences, and whether the removal of the jury from the process is an acceptable step. Related to this is concern over why the removal of the jury is being put forward as a solution to the unrelated problem of witness intimidation. However, the other notable feature of the Bill is the introduction of a new offence (section 5) of directing or participating in the activities of a “criminal organisation”, with the latter term being rather loosely defined (section 3). Of particular note is the provision which makes admissible the opinion evidence of any member of the Gardaí (including retired members) as proof of the existence of a criminal organisation (section 7). These draconian provisions have raised very real concerns regarding whether the Bill goes too far in impinging upon principles of due process and fair procedures under the Irish Constitution and the European Convention on Human Rights. This led to the publication in the Irish Times on July 8 of a letter signed by 133 defence and prosecution lawyers, both barristers and solicitors, in which they stated their view that “[t]he Constitution will surely not permit this, but even if it does, Ireland is likely to find itself shamed before the international community when the European Court of Human Rights or the United Nations Human Rights Committee are, inevitably, called upon to rule on the issue.” The Constitution of Ireland requires in Article 38.1 that “[n]o person shall be tried on any criminal charge save in due course of law.” The phrase “due course of law” is extremely broad; in the 4th Edition of JM Kelly: The Irish Constitution, Professors Hogan and Whyte state that it may be “best be regarded as conveying a bundle of principles and maxims more or less generally accepted in the common law world”. Some of the specific principles covered by the provision include the presumption of innocence; the opportunity to defend oneself and test prosecution evidence; the prohibition of unduly prejudicial evidence; and the requirement that offences be specified with clarity and not unduly vague. As well as the more specific principles, this provision imports the general concept of fair procedures, “a sort of fine-mesh catch-all notion, intended to fill with the general instinct of fair play whatever interstices may be left between more tradition rules and principles of criminal justice”. In State (Healy) v Donoghue [1976] I.R. 325 at 350, O’Higgins CJ stated: “The general view of what is fair and proper in relation to criminal trials has always been the subject of change and development. Rules of evidence and rules of procedure gradually evolved as notions of fairness developed.” The trend of this evolution has generally been to require greater safeguards for the accused in criminal justice legislation, not fewer. The Criminal Justice (Amendment) Bill proposes to allow for the conviction of a defendant, in the absence of a jury and potentially on the uncorroborated opinion evidence of a member of the Gardaí, for the rather vague offence of directing or participating in the activities of a “criminal organisation”, notwithstanding that there is no requirement of any hierarchical or leadership structure, formal membership or continuity of involvement. Directing such an organisation carries a maximum penalty of life imprisonment, while participating in one carries a maximum penalty of imprisonment for 15 years. Given the draconian nature of these provisions, which allow for extremely harsh penalties to be applied in the absence of a number of procedural and evidentiary safeguards that would ordinarily be in place in a criminal trial, it must be questioned whether they meet the standards required by Article 38.1 and the associated case law. In King v Attorney General [1981] I.R. 233, the Supreme Court struck down a provision which allowed a person to be imprisoned for up to 3 months for loitering with intent to commit a criminal offence, and for a conviction to be secured upon the evidence of one credible witness. It was not necessary to prove that the person suspected was guilty of any particular act or acts tending to show his purpose or intent; the provision allowed a conviction if from the circumstances of the case, and from the accused’s “known character as proved” to the court, it appeared to the court that his intent was to commit a felony. The Court found that the provision was “contrary to the concept of justice which is implicit in the Constitution”, and described the offence as:

“so arbitrary, so vague, so difficult to rebut, so related to rumour or ill-repute or past conduct, so ambiguous in failing to distinguish between apparent and real behaviour of a criminal nature, so prone to make a man’s lawful occasions become unlawful and criminal by the breadth and arbitrariness of the discretion that is vested in both the prosecutor and the judge …and generally so singularly at variance with both the explicit and implicit characteristics and limitations of the criminal law as to the onus of proof and mode of proof, that it is not so much a question of ruling unconstitutional the type of offence we are now considering as identifying the particular constitutional provisions with which such an offence is at variance.”

In the event, the provision was found to contravene both the requirement in Article 38.1 that no person shall be tried on any criminal charge save in due course of law and the guarantee in Article 40.4.1° that no citizen shall be deprived of personal liberty save in accordance with law (which, according to Henchy J, “means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution”). The provisions of the Criminal Justice (Amendment) Bill would seem to suffer from a number of the flaws identified in King, as well as the additional concerns raised by the absence of the jury. Moreover, while the provision struck down in King carried a penalty of just 3 months in prison, the 2009 Bill proposes to create offences carrying maximum penalties of life imprisonment for directing an organisation and 15 years for participating in one. In State (Healy) v Donoghue [1976] I.R. 325 at 350, O’Higgins CJ stated:
“…criminal charges vary in seriousness. There are thousands of trivial charges prosecuted in the District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him.”
In this light, there are very real concerns surrounding the constitutionality of the provisions of the Criminal Justice (Amendment) Bill 2009. Notwithstanding this, the Minister for Justice has indicated his intention to proceed with the Bill without making significant changes to it. Given the opinions already expressed by the legal profession, it seems likely that the constitutionality of this new piece of legislation is likely to be tested on its very first application, if not earlier on an Article 26 reference to the Supreme Court.
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