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The Right to Encryption? An Examination of Cryptography Law and Jurisprudence in the UK

The Right to Encryption? An Examination of Cryptography Law and Jurisprudence in the UK

Samuel Elliott

Introduction

Kahn, recounting the history of ‘secret writing’, notes that the ‘multiple human needs and desires that demand privacy … must inevitably lead to cryptology’.[1] Whilst the first formal study and application of cryptography can be credited to Arabic mathematicians,[2] advancements in the 20th century saw the widespread application of machine-based encryption in both governmental and civilian life.[3]

The debate on encryption rights forms ‘one of the defining issues of our culture in the 21st century’.[4] McNulty argues that the development of accessible and affordable means of encryption have enabled the public to quickly and securely share private information. Cryptography serves as the backbone for technologies spanning digital security, e-commerce, and communications fields.[5] It allows for the protection of sensitive information but also enables users to digitally sign and verify messages. Denning argues that – despite significant debate on the merits of ‘unbreakable’ encryption – ‘practically everyone agrees that cryptography is an essential information security tool’ that should be readily available.[6]

Cheap and accessible encryption nonetheless presents an obstacle to law enforcement. The interception of communications can be rendered virtually impossible, putting them beyond the remit of a criminal investigation. Similarly, encrypted data may be seized, but without the appropriate means of decryption, it is rendered practically useless. Denning argues that an absolute right to secrecy in the form of cryptography could have devastating consequences for ‘public safety and social and economic stability’.[7]

At the time of writing, the UK has announced its intention to leave the EU in accordance with Article 50 TFEU. Assuming the UK leaves on 12 April 2019 – as it is currently expected to at time of publication – it will fall outside the scope of the Commission’s proposed encryption regime. Furthermore, Prime Minister May allegedly plans to withdraw from the ECHR following Brexit.[8]

Given the potential for significant regulatory and legal divergence, it is useful to examine encryption rights within the UK. Cameron’s encryption ban proposal in 2015 strongly contrasts with the EU and ECHR approach towards individual encryption rights.[9] The publication of the Report of Investigatory Powers Review by Anderson in June recognized the significant security flaws for manufacturers in creating backdoors for Government use.[10] However, the report did not suggest any reform regarding key disclosure at the individual level, as exist under RIPA.

Regulation of Investigatory Powers Act 2000

Mandatory key disclosure laws have been in place in the UK since the enactment of Part III of the Regulation of Investigatory Powers Act in 2007.

Section 49(3) of RIPA sets out the circumstances wherein disclosure may be compelled. Disclosure may be required in the interest of national security, for preventing or detecting crime, or for the economic well-being of the United Kingdom.[11]

Key disclosure applies when encrypted data is seized or otherwise lawfully obtained. If the seizing body believes that a key to the protected information is possessed by ‘any person’, and that disclosure of the key is necessary to meet the requirements of s 49(3) (or any other statutory duty), an order may be made for key disclosure. [12]

The disclosure requirements are qualified by the necessity that the requirement is ‘proportionate to what is sought’.[13]  There must also be no ‘reasonably practicable’ means of obtaining a decrypted copy of the information without making a disclosure notice.[14]

The accompanying Code of Conduct for Part III provides further detail as to what is envisaged by the proportionality requirement.[15] In determining proportionality, requestors should consider ‘the extent and nature’ of the protected information, and whether disclosure might have any negative impacts ‘on a business carried on’ by the requestee.[16] It is notable that the proportionality requirements mirror the requirements for interference with Article 8 of the ECHR. This suggests that the Home Office recognized that mandatory disclosure laws run the risk of interference with Convention rights at the time of drafting.

Failure to comply with a disclosure warrant under s 49 of the Act carries a sentence of up two years imprisonment in regular cases, or five years in national security or child indecency cases. Questions as to the efficacy of punishment in cases where the refusing requestees are avoiding harsher sentences. By way of example, possession of child sexual abuse material can carry a sentence of up to 10 years in the UK.[17] A defendant may strategically refuse to hand over their encryption key, subjecting themselves to a lesser punishment (if they cannot otherwise be prosecuted).

This approach can be compared to the punishments for failure to decrypt and hand over data under the All Writs Act.

Investigatory Powers Act 2016

The Investigatory Powers Act vastly expands and codifies Governmental surveillance powers in the UK. The act provides for widespread interception of communications, the request for communications data, and the decryption of encrypted information.[18]

The Act did not modify s 49 warrants under RIPA, but vastly increased the scope of UK intelligence’s powers to access decrypted data on encryption providers in the UK and beyond.

Under the 2016 act, the UK Government can serve Technical Capability Notices on operators requiring them to remove electronic protection on communications or data on an ongoing basis.[19] [20] This includes encryption, meaning de facto backdoors must be created into secure communications channels.

TCNs are issued as National Security Notices, and therefore are subject to the consideration of the Secretary of State.[21] They can only be issued if the Secretary considers that the notice ‘necessary in the interests of national security’ and are ‘proportionate to what is sought to be achieved by that conduct’.[22] Furthermore, National Security Notices cannot be used where the covered act would require a warrant or authorization under a relevant enactment.[23] TCNs can be issued to persons outside the UK and can require actions to be taken (or not taken) overseas.[24]

The IPA and the Extraterritorial Clash of Regimes

In comparative terms, the IPA provides for the most extensive interference in terms of the mandatory decryption of data – and the simultaneous creation of backdoors to facilitate doing so. The Commission proposal would overrule the IPA if the UK were to remain subject to EU law. Nonetheless, the imminent departure of the UK from the EU suggests that encryption rights for encryption providers will differ sharply between the two jurisdictions.

However, should the EU set the territorial scope of the Commission proposal as wide as the GDPR (insofar as it covers all European data), the UK may be forced to recognize manufacturer encryption rights. Specifically, if the EU were to encompass personal data flows and communications into the EU as subject to the proposed encryption regime, the UK would have to maintain stronger regulatory standards for protection. Communication providers may be forced to ensure that encrypted data is not subject to subsequent interference or backdoors as a result of TCNs.

The extraterritorial clash of privacy regimes has previously led to conflicts between the US and EU. The Schrems ruling overturning Safe Harbour suggests that the CJEU is willing to tackle surveillance-related interference with EU data. [25]

If the finished amendments to the ePrivacy Directive provide for encryption rights for manufacturers operating with EU data, the UK may have to meet EU privacy standards. An encryption-based Safe Harbour-esque deal may be struck, wherein foreign data is excluded from domestic and other international surveillance. This would impact both US and UK data and may be the next expansion of EU extraterritorial data policy post-GDPR.

[1] Kahn, The Codebreakers – The Story of Secret Writing (2nd edn, Scribner 1996).

[2] Rasheed, Encyclopedia of the History of Arabic Science (2nd edn, Routledge 1996).

[3] Lynn McNulty ‘Encryption’s Importance to Economic and Infrastructure Security’ (1999) 9 Duke Journal of Comparative & International Law 427, 427.

[4] ibid.

[5] ibid.429

[6] Denning, The Future of Cryptography. in Loader Bd (ed), The Governance of Cyberspace: Politics, Technology and Global Restructuring (Routledge 1997) 175.

[7] ibid 178.

[8] Hope ‘Theresa May to fight 2020 election on plans to take Britain out of European Convention on Human Rights after Brexit is completed’ (The Telegraph, 2016) accessible at <http://www.telegraph.co.uk/news/2016/12/28/theresa-may-fight-2020-election-plans-take-britain-european/> accessed 6 August 2017.

[9] Kravets ‘UK Prime Minister Wants Backdoors into Messaging Apps or He’ll Ban Them’ (Ars Technica, 2015) arstechnica.com accessible at <https://arstechnica.com/tech-policy/2015/01/uk-prime-minister-wants-backdoors-into-messaging-apps-or-hell-ban-them/> accessed 6 August 2017.

[10] Anderson ‘A Question of Trust? Report of the Investigatory Powers Review’ (Independent Reviewer of Terrorism Legislation, 2016) accessible at < https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/06/IPR-Report-Print-Version.pdf> accessed 6 August 2017.

[11] Regulation of Investigatory Powers Act 2000 s 49(3).

[12] ibid s 49(1).

[13] ibid s 49(2).

[14] ibid.

[15] Home Office ‘Investigation of Protected Electronic Information: Code of Practice’ (2007) accessible at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/97959/code-practice-electronic-info.pdf> accessed 6 August 2017.

[16] ibid.

[17] Criminal Justice and Court Services Act 2000 s 41(2).

[18] Cropper ‘The Investigatory Powers Act 2016 – A "Snoopers' Charter" or a legitimate surveillance tool for today's society?’ (Privacy, Security and Information Law, 2017) accessible at <http://privacylawblog.fieldfisher.com/2017/the-investigatory-powers-act-2016-a-snoopers-charter-or-a-legitimate-surveillance-tool-for-todays-society/> accessed 6 August 2017 (Cropper).

[19] Investigatory Powers Act 2016 s 253.

[20] Cropper (n 18).

[21] Investigatory Powers Act 2016 s 252.

[22] Ibid s 252 (1).

[23] Ibid s 253 (5).

[24] Ibid s 253 (7).

[25] Case C-362/14 Schrems v Data Protection Commissioner [2015].

Samuel Elliot holds a BCL (Dublin City University, 2012-2015, First Class Hons) and an LL.M Eur (London School of Economics, 2016-2017, Merit). He is currently a pre-Trainee Solicitor at Matheson (2019). Samuel wishes to thank Professor Andrew D Murray of the London School of Economics for his mentorship in drafting this article.

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The Naturalisation Of Irish-Born Children Of Migrants

The Naturalisation of Irish-Born Children of Migrants: Bidding Leave to Leave to Remain

Sinéad Walsh

The recently increased media focus on cases pertaining to the children of migrants born in Ireland,[1] along with the proposal of the Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018,[2] has accentuated concerns surrounding the proficiency of the Irish approach to regulating residency.

Under the current law effectuated by the 2004 referendum, Irish-born children of migrants do not have an automatic right to citizenship.[3] Consequently, they do not have an automatic right to reside in the State if their parents are refused residency. Their only prospect of obtaining legal residency in their country of birth is to resort to making a case to the Minister on why they should be entitled to remain on humanitarian grounds, utilising the ‘leave to remain’ option.[4]

A permission for leave to remain is one of three legal statuses sought by International Protection applicants in this State.[5] If the 2018 Bill is enacted, Irish-born children of migrants will be able to circumvent applying for leave to remain through applying for naturalisation instead, so long as they fulfill prerequisite criteria. This article shall identify the injustices that leave to remain imposes on children in these cases with particular focus on how parent-child relationships, case processing times, evidentiary requisites and compliance with international and constitutional obligations are affected. The adequacy of the amendments posed by the 2018 Bill in rectifying such issues will also be analysed.

Leave to remain is understood to be the most restrictive option of the threefold statuses encompassed in the law on International Protection.[6] It denies holders an automatic right to family reunification,[7] leaving them the sole option of applying at the discretion of the Minister.[8] By obtaining citizenship through naturalisation if the 2018 Bill comes to fruition, the child in question would still be denied an automatic right to family reunification as an Irish Citizen.[9] However, as the child would instantaneously become a citizen of the European Union,[10] a case could be furnished for their parents’ entitlement to residency pursuant to the Zambrano[11] judgment. Under this European Court of Justice ruling, art 20 of the TFEU was held to mean that Member States of the European Union are precluded from refusing to grant residency and from refusing to grant a work permit to the parent of the citizen child so long as that parent fulfills distinct criteria.[12] This revision would restore a greater degree of certainty for the child involved and avoid exposing them to the unnecessary stress of potentially having their parent(s) deported.[13]

Further, exascerbated by the largest migration crises to date,[14] the combined length of time spent waiting for a decision to be issued on the child’s parents’ International Protection application and the child’s subsequent leave to remain application can amount to ten years and longer. This results in years of childhood being marred with uncertainty and prolongs the vulnerability the child is exposed to. The 2018 Bill seeks to reduce the required length of time needed to apply for citizenship for such children. The current prerequisite of one year’s continuous residence in the State immediately before the date of application plus a total residence of four of the eight immediately preceding years would be amended so that the four year requirement is reduced two years,[15] accounting for the child’s young age and mitigating the lengthy waiting time. The 2018 Bill also poses to waive the requirement to spend these years on a ‘reckonable residence’.[16] In doing so, the child would be able to bypass a leave to remain application and apply for citizenship instead, curtailing the wait time even further. Taking the case of Eric Zhi Ying Xue as an example,[17] this amendment would recognise that even though Eric Zhi Ying Xue was ultimately successful in obtaining a leave to remain status, the years of uncertainty and vulnerability that the process exposed him to was a failure on the part of the Irish government’s system of processing. The State ought to be held responsible for delays in the processing of International Protection cases and the consequences should not be foisted on an innocent child. This assumption of responsibility is what underpinned the introduction of the right to work last year for International Protection applicants who spend nine months or longer in the case processing system without being issued with a first instance decision.[18] This author asserts that the rationale behind cases of Irish-born children of migrants should follow suit.

Moreover, as part of an application for leave to remain, the applicant is required to produce any ‘humanitarian considerations’ which give reason to the Minister on why they should not be deported.[19] In order to be successful in practice, the applicant must show an exceptional level of connection and integration into the State. While this may have been an attainable standard to meet in the unique case of Eric Zhi Ying Xue, this author argues that it is not feasible nor is it fair to expect every relevant child to be able to obtain an extensive public outreach. Equally, the case of Eric Zhi Ying Xue manifested how having a Minister reside in the child’s area is a pertinent attributing factor to the success of a case, a coincidence which ought to have no bearing on granting a permission of residency.[20] If the 2018 Bill is passed, it will allow these children to avoid bearing such an onus by applying for naturalisation instead, which would be adjudged on more concrete material under the 2018 Bill’s amendments.[21]

In addition, it has become increasingly evident that this leave to remain system is at odds with both Irish and international legal developments that have evolved since the 2004 referendum. From the perspective of Irish law, while the 2004 referendum ensued changes for Irish-born children, the 2012 children’s referendum also subsequently introduced further changes. Ireland underwent a shift in its perspective of children’s rights by inter alia recognising children as individual rights holders.[22] By introducing an amendment which allows an Irish-born child to apply for naturalisation irrespective of the legality of their parent’s residency, the 2018 Bill is a concession to this modern legal principle. It prevents the injustice of making a child answerable to consequences stemmed from his/her parents’ actions.

On the international plane, the United Nations Committee on the Rights of the Child (CRC)’s 2016 concluding observations comprised of concerns about the absence of ‘clear and accessible formal procedures for conferring immigration status on persons in irregular migration situations.’[23] It was recommended that Ireland ‘take measures to ensure that children in irregular migration situations are provided with independent legal advice and timely clarifications on their migration status.’[24] As was aforementioned in this article, the leave to remain system is evidently lacking in clarity, formality and time-efficiency with a decision being made on a whim of Ministerial discretion over the course of many years.

Despite the 2018 Bill being instrumental in ameliorating the law surrounding residency for Irish-born children, it is arguably a mere step towards achieving justice for children in these cases and collineating Irish domestic law with it’s international obligations. The law is still outstanding further amendments on this issue. For example, had the 2018 Bill included a provision expressly requiring a child’s Convention rights and best interests to be considered in the process of granting or refusing naturalisation, even further harmonisation with both international and Irish Constitutional obligations could have been achieved.[25] The CRC have issued concerns on the absence of legislation for ensuring that the provisions of the Convention are respected in decision-making processes which involve children.[26] Nevertheless, if the 2018 Bill is passed a statutory basis for decisions regarding naturalisation in this area will provide a sounder alternative to ad-hoc leave to remain.

Furthermore, it is this author’s contention that actions taken by the Department of Justice regarding both naturalisation and leave to remain ought to be opened to investigation by the Ombudsman for Children.[27] This would ensure further protection and vindication for such children and offer compliance with the international obligation to treat all children in this jurisdiction equally and ensure the same services are provided to all.[28]

In conclusion, this author praises the development of the 2018 Bill as a necessary step in strengthening the law regulating residency of Irish-born children of migrants. If implemented, it would relieve the harshness of the current leave to remain system that such children are exposed to as a result of a referendum that was largely based on misconceptions.[29] It would be an advancement towards promoting a more inclusive social attitude and a sounder rule of law.

 

[1] Carl O’Brien ‘Primary School Campaigns to Prevent Deportation of Nine-Year-Old Pupil’ (The Irish Times, 17 October 2018) https://www.irishtimes.com/news/education/primary-school-campaigns-to-prevent-deportation-of-nine-year-old-pupil-1.3666695&gt accessed 31 January 2019; ‘Schoolboy and Family Granted Permission to Stay in Ireland Following Campaign’ (The Journal.ie , 10 October 2018) <https://www.thejournal.ie/nonso-muojeke-tullamore-4279234-Oct2018/> accessed 31 January 2019.

[2] Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018 Dail Bill (2018) 124 <https://data.oireachtas.ie/ie/oireachtas/bill/2018/124/eng/initiated/b12418s.pdf> accessed 31 January 2019 (the 2018 Bill).

[3] Twenty-Seventh Amendment of the 1937 Constitution.

[4] International Protection Act 2015, s 49.

[5] The other two options are ‘refugee status’ or ‘subsidiary protection’. For more information on the requirements and benefits encompassed in these legal status’s, see John Stanley, Immigration and Citizenship Law (Round Hall 2017) ch 5.

[6] ibid.

[7] When s 56 of the International Protection Act 2015 was commenced, it amended the law to only allow an automatic right to family reunification to persons with refugee status or subsidiary protection.

[8] See Irish Naturalisation and Immigration Service, ‘Policy Document on Non-EEA Family Reunification’ Department of Justice and Equality (December 2013) <http://www.justice.ie/en/JELR/Family%20Reunification%20Policy%20Document.pdf/Files/Family%20Reunification%20Policy%20Document.pdf> accessed 31 January 2019.

[9] Stanly (n 5).

[10] Treaty of the Functioning of the European Union, art 20.

[11] Case C 34/09 Ruiz Zambrano v Office National de L’Emploi [2009] ECR I-01177.

[12] As set out in the judgment, the parent must be able to show that they are living in the State and that the child is dependent upon them or that they are actively involved in the child’s life in an emotional and financial capacity.

[13] Such fears of having one’s parents deported were evident even before the 2004 referendum. Prior to 2003, the default position of the Minister for Justice was to grant the parent(s) a leave to remain permission in these circumstances, only refusing where it was necessitated by the common good ie where the parent(s) committed a crime. However, with pressure from both L and O v Minister for Justice, Equality and Law Reform [2003] 1 IR 1 holding that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child and the development of insidious societal attitudes towards such migrants that pre-empted the 2004 referendum, the Minister adopted a more restrictive revision on his policy, ceasing to consider leave to remain applications based solely on parentage of an Irish born child individually. Even when the Irish-Born Child Scheme of 2005 or ‘IBC 05’ was introduced with a view to being a courtesy for the cases that were being processed during the time of the referendum, many applicants launched unsuccessful appeals, arguing that the scheme failed to consider their Convention and Constitutional rights in accordance with law despite the claim that it was one of the core objectives of the scheme.

[14] The amount of International Protection applications increased significantly in the early 2000s, causing a backlog of cases ever since. See Reception and Integration Agency, ‘Monthly Report October 2018’ Department of Justice and Equality (2018) http://www.ria.gov.ie/en/RIA/October%202018%20monthly.pdf/Files/October%202018%20monthly.pdf accessed 31 January 2019, 2.

[15] Irish Nationality and Citizenship Act 1956, s 15; 2018 Bill (n 2) s 2(1).

[16] 2018 Bill (n 2).

[17] O’Brien (n 1).

[18]Ireland opted into art 15 of the Council Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast).

[19] 1937 Constitution (n 3).

[20]Emma O’Kelly, ‘Harris “Assisting” Bray School to Halt Pupil's Deportation’ (RTE News, 18 October 2018) https://www.rte.ie/news/ireland/2018/1017/1004756-deportation/ accessed 31 January 2019.

[21] (n 2).

[22] 1937 Constitution, art42A.

[23] UN Committee on the Rights of the Child (CRC), ‘Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland’ (29 January 2016) CRC/C/IRL/CO/3-4 [67] <https://www.refworld.org/docid/56c17f574.html> accessed 1 February 2019.

[24] ibid [68].

[25] ibid [10]; 1937 Constitution, art 42A.

[26] ibid [10].

[27] ibid [19].

[28] ibid [66].

[29] Ivana Bacik criticises the referendum for lacking evidentiary necessity, asserting that it was largely based on widespread speculation of immigrants purposely giving birth in Ireland to take advantage of the birth-rights of the Irish citizen child. See Seanad Deb 21 November 2018, Speech 483.

Sinéad Walsh is currently a law student in University College Cork and has had experience working in various bodies dealing with human rights and International Protection, including the International Protection Appeals Tribunal, Nasc and the Legal Aid Board. She has also held various positions on the Editorial Board of the Cork Online Law Review.

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Case note: NHV v Minister for Justice & Equality

NHV v Minister for Justice & Equality: A Critique of the Refugee Act 1996 and Direct Provision

Luke Mooney-Foley, 5th Year, Piper’s Hill College

This article is the winning article from the TCLR Secondary Schools Competition 2017-18

This article concerns the Refugee Act 1996 and the judgment of the Supreme Court in NHV v Minister for Justice & Equality,[1] in which it was held that s 9(4) of the Act was unconstitutional, for the reason that it infringed upon the Constitutional right of all persons, irrespective of their citizenship of the State, to work.

Section 9 of the Refugee Act 1996 provides that a person who applied in the State for refugee status is entitled to remain in the State, while their application for refugee status is being considered. Section 9(4)(b) of the Act provides though, that the applicant may not ‘seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration’. During the period while his or her application is being considered, the applicant is obliged to live in accommodation provided by the State, which is known as Direct Provision. Under this system, applicants for refugee status are also provided with items to satisfy their most basic needs, such as meals, heat, and light.

In NHV, the Applicant challenged the constitutionality of s 9(4)(b) of the Act and argued that the requirement to live in Direct Provision and the associated prohibition on seeking employment was an unconstitutional infringement upon the Applicant's personal rights. The Applicant argued that while he was not a citizen of the State, he was irrespectively entitled to avail of the unenumerated rights provided by art 40.3, including the right to work.

Inasmuch as a person seeking refugee status does not qualify as a citizen of the State, the question is raised of whether a non-citizen may rely on the provisions of the Constitution. This question was considered in the course of NHV. In the judgement of NHV, O'Donnell J considered the legitimate concerns justifying a differentiation of citizens of the state and persons who seek refugee status in the State.

The Respondent maintained that the number of successful asylum seekers is a small minority, with respect to the total number of applicants for refugee status. The Respondent also relied upon the grounds that if a capacity to access the labour market was granted to applicants, there would be a significant upsurge in applications for asylum and that this access to the labour market would provide for difficulties in removing an asylum seeker whose application was determined adversely to their interests.[2]

In his judgement, O'Donnell J also gave respect to the European Union Charter of Fundamental Rights and the United Nations Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights.[3] Article 15 of the European Union Charter of Fundamental Rights provides, inter alia, that ‘veryone has the right to engage in work and to pursue a freely chosen or accepted occupation’.[4] Moreover, the extract from the United Nations Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights relied upon by the Applicant maintains that the right to work is intrinsically associated with the realisation of human dignity and the development and recognition of the individual within the community.[5]

After recognising that the entitlement of non-citizens to rely upon the provisions of the Constitution has been inconclusively debated since the case of The State (Nicolaou) v An Bord Uchtála and that no comprehensive or accepted theory regarding the matter has been advanced,[6] O'Donnell J held that the Supreme Court should not reach a decision on the matter by judicial fiat or by reaching a conclusion sub silentio which conformed to the established position whereby non-citizens may rely upon a constitutional provision, where that provision is not substantially associated with the concept of citizenship.[7] O'Donnell J held that persons who were not citizens of Ireland were entitled to avail of Constitutional rights, where those rights concerned their human personality. Moreover, O'Donnell J held that the right to work, in the sense of freedom to work and to seek employment is a right which forms part of the human personality.[8]

In a carefully considered and balanced judgement, O'Donnell J maintained he could not “accept that if a right is in principle available, that it is an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time from asylum seekers’.[9] Appertaining to O'Donnell J's judgement in NHV, it follows that the principal criticisms of the legal provisions of the Refugee Act s 9(4)(b) are the absolute nature of the prohibition of employment conjoined with the undefined period of time that may elapse in processing the application for refugee status in the State and in consequence, the undefined period of the blanket prohibition of employment. In the concluding paragraph of his judgement, O'Donnell J held that ‘in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s 9(4) (and re-enacted in s 16(3)(b) of the 2015 Act) is contrary to the constitutional right to seek employment’.[10]

Bryan McMahon published a report to the Oireachtas wherein recommendations were detailed to address, inter alia, criticisms of s 9(4)(b).[11] McMahon observed the ‘human costs’ associated with s 9(4)(b), including the obsoletion of skills and the creation of dependency.[12]  The report respects that the ban on employment denies the applicant a sense of personal autonomy and an effective control of their own life, while preventing the realisation of the applicant's physical, mental and personal integrity. McMahon hence maintains those applicants in Direct Provision for a time greater than nine months ought to be granted access to the labour market, under the provisions of the European Union Recast Reception Conditions Directive.[13] McMahon also holds that an applicant who is successful in entering the labour market and wishes to remain in Direct Provision ought to be subjected to a means test, in determining a suitable contribution to the services and goods provided to them.[14] Applicants who are successful in entering the labour market would also be obliged to pay incomes taxes, while equally being granted access to social protection schemes.[15]

The judgement of NHV should be held as a judgement of general public importance, with respect to O'Donnell J's decision that non-citizens may be entitled to rely upon the provisions of the Constitution, where those provisions affect the human personality. This judgement may also elicit a further revision of the provisions of s 9(4)(b), which may allow for asylum seekers to have the capacity to pursue a sense of autonomy and societal integration through the labour market.


[1] NHV v Minister for Justice & Equality [2017] IESC 35 (NHV), [2017].

[2] Ibid [18] (O’Donnel J).

[3] Ibid [13], [16].

[4] European Union, ‘Charter of Fundamental Rights of the European Union’ 2012/C 326/02 , art15(1).

[5] UN General Assembly, ‘International Covenant on Economic, Social and Cultural Rights’ 16 December 1966, 993 UNTS 3[1].

[6] [1966] IR 567

[7]  NHV (n 1) [11].

[8]  Ibid [17].

[9] Ibid [19].

[10] Ibid [21].

[11] Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (2015).

[12] Ibid [5.43].

[13] Ibid [5.51].

[14] Ibid [5.49.3].

[15] Ibid [5.52].

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Case update: Simpson slopping out case granted leapfrog appeal

Case update: Simpson slopping out case granted leapfrog appeal

Alan Eustace - Trinity College Dublin, Law & French

In this year’s print edition of the TCLR, this author examined whether conditions within the Irish prison system, in particular conditions of sanitation and healthcare provision, are compliant with the Constitution – see Alan Eustace, ‘Bunreacht Behind Bars: The Irish Prison System in its Constitutional Context’ (2018) 21 Trinity College Law Review 89.

That article examined, in part, the recent landmark decision of the High Court in Simpson v Governor of Mountjoy Prison [2017] IEHC 561. The plaintiff alleged that the slopping out regime in Mountjoy’s protective wing was a violation of several constitutional rights, including privacy, bodily integrity, dignity, and not to be subject to inhuman or degrading treatment. White J in the High Court made a number of informative comments on the constitutional position with respect to inhuman or degrading treatment. First, it is an absolute right: ‘You cannot have proportionate torture or inhuman or degrading treatment’, although the severity of the treatment may be relevant in determining if it constitutes a breach of rights.  Second, he held that the intention of the prison authorities is merely one factor in determining whether inhuman or degrading treatment has occurred, and that it is unnecessary to find such intention if the treatment ‘attains an appropriate threshold of severity’. This author argued in the print edition that Simpson may have finally exorcised the troubling ‘evil purpose’ test from Irish law, as had been set down by Finlay P in State (C) v Frawley [1976] IR 365:

I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge, retaliation, the creation of fear or improper interrogation.

A requirement of such malicious intent is not to be found in the jurisprudence of the European Court of Human Rights (see, for example, Peers v Greece app no 28524/95), nor in modern academic commentary. The print edition article welcomed White J’s departure from the outdated ‘evil purpose’ test.

On the facts, however, White J found that the slopping out regime in Mountjoy did not amount to torture nor to inhuman or degrading treatment. He held, rather, that the regime constituted a breach of the plaintiff’s right to privacy, although he refused to award the plaintiff damages for this breach due to the latter’s conduct in giving evidence.

The plaintiff sought leave to appeal directly to the Supreme Court under Article 34.5.4 of the Constitution. Although the State did not oppose the leave application, the Supreme Court directed an oral hearing be held on 20 June 2018. In a written judgment given 27 June, the Court granted leave to appeal, considering that a determination of the threshold for inhuman or degrading treatment is clearly a point of law of ‘general public importance’ for the purposes of Article 34.5.4:

It seems to this Court that the following general issues which potentially arise in this case do meet the broad constitutional threshold. First, there is the question of the overarching principle by reference to which it must be determined that treatment of a prisoner can be regarded as inhuman and degrading. In that context, other issues potentially arise as to the extent to which, in reaching an overall assessment as to whether treatment has been inhuman and degrading, the Court can take into account the circumstances pertaining to the relevant prisoner’s detention. Undoubtedly, any final assessment as to whether the existence of inhuman and degrading treatment has been established in a particular case will necessarily be somewhat fact specific. However, the Court is satisfied that a broad issue, of more general application, clearly arises as to the factors which can and should be taken into account in reaching an assessment as to whether such treatment has been established.

Furthermore, the Court noted the urgency of a final determination of the legal principles in this area, given the volume of similar cases pending before the courts:

[T]he Court was informed by the parties that in excess of 1,600 cases involving contentions, which are at least broadly in the same category as those which arise in these proceedings… [T]he current view of the judge in charge of the relevant High Court list was that he would not list any other cases for hearing until such time as any appellate process in this case had completed. It was acknowledged, of course, that that situation might change in the event that a lengthy period of time were to elapse before this case concluded. However, it is entirely understandable that the High Court would not wish to waste resources in trying cases where the basis on which the case was tried might turn out to be inaccurate in some respect in the light of the final determination of relevant legal principles which might result from this case.

The Court ordered that documents be filed by 18 July, and a case management hearing be held shortly thereafter. This hearing was listed for 24 July before MacMenamin J.

In light of the criticisms levelled at the ‘evil purpose’ jurisprudence in the print edition article, it is to be welcomed that the Supreme Court is to engage again with the constitutional understanding of inhuman or degrading treatment. The High Court’s finding on this point was, thankfully, more in line with ECtHR jurisprudence and modern penological thinking in this area. It is hoped that the Supreme Court uphold White J’s view that malicious intent on the part of the prison authorities is not required for conditions of imprisonment to amount to inhuman or degrading treatment. As for the question of whether the plaintiff’s detention met the threshold for inhuman or degrading treatment, the Court is likely, of course, to defer to White J’s view of the facts. However, if the Court lowers the threshold for inhuman or degrading treatment applied in the High Court, then the finding on this point may have to be revised. Any such change will have an enormous impact on the many pending slopping out cases. Until the Supreme Court finalises the law in this area, then, it seems these plaintiffs remain prisoners to fortune.

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All Hail Public Inquiries! Long May They Reign?

All Hail Public Inquiries! Long May They Reign?

Jack Lyons - University College Cork, Law (International)

Introduction

Following the Mahon Report, the Irish public thought they had bid farewell to the era of public inquiries. ‘We’ll not see your likes again. Thankfully.’ wrote Michael Clifford on the contentious issue of public inquiries reigning for decades in the Irish domain.[1] However, February 2018 marked the one-year anniversary since the commissioning of yet another public inquiry, the Disclosures Tribunal[2], concerning the alleged smear campaign of sergeant Morris McCabe. With public inquiries prominent once again, and daily developments from the Disclosures Tribunal encasing the realm of Irish media, it is worth re-evaluating the often negative and reductionist interpretation of the functioning of these multifaceted beings. Prominent lawyers such as David Allen Green have taken a pejorative approach to public inquiries in recent times, stating that every inquiry is ‘an implicit admission of the failure of existing state institutions’.[3] This offers a cynically biased perspective which depicts public inquiries functioning in the narrowest of terms. It omits what these inquiries provide in terms of substantive policy and administrative reform. On the other hand, it is imperative to address the ‘paradoxical’ legitimacy argument concerning the authority of an inquiry being ‘the flip-side of the lack of legitimacy of the public bodies which are already there.’[4] This relates primarily to the Executive and Legislature. The proliferation of public inquiries in the past two decades are indicative of the weaknesses of parliamentary structures.[5]

This article shall examine the operation of public inquiries in Ireland by assessing their roles in two distinct sections. This author will first briefly convey how inquiries are not merely an implicit admission of the failure of existing state institutions but are in fact a systematic progression towards institutional refinement by means of considering broad questions of policy, implementation, and political frameworks. In conjunction with this, it is further argued that the employment of public inquiries is necessary as the issues they address are often deeply political and require impartiality. Public inquiries ensure political accountability to avoid alleviation of guilt for purposes of self-preservation. Nonetheless, their prolonged reign in the Irish politico-legal landscape to date infers how our political system is alarmingly incapable of addressing these fundamental problems independently, subsequently confirming the above-mentioned legitimacy paradox. So long as impotent parliamentary structures go unreformed, the lengthy reign of public inquiries shall be perpetuated.

An Implicit Admission of Institutional Failure, or an Explicit Effort Towards Improving Administrative Oversight and Institutional Refinement?

This author provides that it is an inaccurate assumption to presume that a mechanism developed for the sole purpose of investigating facts and failings in order to provide core recommendations for avoiding future mistakes, is simply an admission of the failings of existing state institutions. In contradiction to this defeatist view that inquiries exist due to a failure within an existing state institution, it is necessary to invoke their broader function- that every inquiry is an explicit effort towards improving and regulating administrative oversight within these institutions. As Elliott succinctly provides, public inquiries present ‘the facilitation of lesson-learning by means of analysing the relevant issues and formulating proposals for reform in areas ranging from substantive policy and administrative practice to an institutional design and interaction.’[6]

The impact of tribunals recommendations on administrative oversight and institutional refinement in Irish institutions has been vast per MacCarthaigh.[7] An interim report in 2004 by the Morris Tribunal also significantly developed the appraisal of methods for overseeing police workings of An Garda Síochana in Ireland.[8] While both the Mahon and Moriarty Tribunals did not produce fundamental shifts in the administration of systems, it did produce some shifts and understandings on how procedures can be improved. It shone light on spaces not publicly highlighted before.  The dual-powers of the Moriarty and Mahon Tribunal have led to amendments to the 1995 Ethics in Public Office Act[9] in tandem with new codes of conduct for public representatives.[10] One need only review the success of the Lindsay Tribunal to be aware of how public inquiries in Ireland have been responsible for the establishment of several regulatory bodies, such as the National Haemophilia Council, which improves the administration of healthcare in Ireland.

These are but some of the examples of successful public inquiries’ recommendations forming part of a systematic effort for refining the administration and regulation of existing state institutions. Beer suggests mechanisms to be adopted in this area in order to ensure the implementation of these recommendations leading to reform.[11] This author wishes to highlight the most vital mechanism divulged; audit systems deployed to examine at a later stage to what extent the recommendations are enforced.[12] In failing to have audit systems in place, we risk inquiries regressing into implicit admission of the failure of existing state institutions without bearing any actual reforms.

Lack of Trust, and Legitimacy in Public Bodies- Two Unfortunately Harmonious Elements

It seems that if something is a matter of ‘public interest’,[13] then it should be dealt with by the political system. There is a degree of cynicism in the modern political era regarding the ability of political actors to deal with these issues in a non-partisan and efficient manner. Oireachtas committees seem a worthy contender for carrying out this task. Yet, Donson and O’Donovan note how fear of proximity to the State underlying the Oireachtas mechanism disrupts this.[14] When members of the Executive and their counterparts act as the perpetrators, there is perhaps little chance of bringing themselves to account or at least little public faith in this being done. As the saying goes, turkeys do not vote for Christmas. This presumption of political self-preservation thus requires impartiality in the form of a judicial figure leading a public inquiry to ensure effective accountability.[15]

However, it is not solely this lack of trust in our political actors that provokes the public not wishing to have those who should deal with the identified problem to do so. A correlation exists between this lack of trust, and the inherent weaknesses of the public bodies in place i.e. the parliamentary systems. They are unfortunately harmonious. Flaws in the legitimacy of public inquiries become apparent when examining issues assessing workings within the political realm, such as the Mahon Tribunal compared to the Stardust Tribunal. Although the effect of public inquiries is to develop policy reforms regarding institutional failure and administrative oversight of public bodies, their independence and expertise does raise the question of why the Executive and the Legislature cannot achieve this.

It is submitted that the rapid proliferation of public inquiries is representative of the fundamental flaws within the current parliamentary system in Ireland in dealing with issues addressed by public inquiries.[16] The Beef Inquiry links the paradoxical legitimacy argument exhumed at the exposition of this article as it provides cause for tribunals of inquiry due to weak parliamentary oversight mechanisms. Hamilton CJ claimed at the Beef Tribunal that ‘[I] think if the questions that were asked in the Dáil were answered in the way they are answered here, there would be no necessity for this inquiry and an awful lot of money and time would be saved.’[17] This explicitly exemplifies the flip-side of the legitimacy of public bodies and inquiries. Parliamentary debate subsequent to the Finlay Tribunal’s offers reaffirms this inconsistency:

Why was this information revealed in a tribunal as distinct from Dáil Eireann? The answer is that the Dáil failed because it was misled by Ministers who, in turn, were misled by State authorities. The Dáil failed in one of its primary functions, to hold the Government of the day accountable for its stewardship of State authorities, and this is very dangerous.[18]

Although there will always be the risk ‘that proceedings will be undermined by party-political scoring’[19] due to the very nature of the parliamentary process, it seems that we may have abandoned the executive and legislative organs of state to deal with these issues, particularly political accountability. The Executive has the resources to monitor its officials and to make effective policies, and there are in place independent inspectors and complaints commissioners. This can ‘negate impact on accountability’[20] as the Legislature can hold the Executive to account, and through its committees it can obtain evidence and have public hearings.[21] Yet, its effectiveness in practice has proven weak. This legitimises the relevant independence and expertise of public inquiries. MacCarthaigh notes how ‘[t]he recurring theme of recent tribunals of inquiry has been that parliamentary procedures such as Question Time and adjournment debates have failed in their role of assessing the Executive.’[22] Concerning political actors, the very need to set up the Beef Tribunal or the Moriarty Tribunal demonstrates how parliamentary mechanisms are ‘virtually impotent’ in terms of eliciting information from members of the government.[23] The fact that public inquiries are ‘typically only used ... when other agencies of investigation have failed to work or are unlikely to work.’[24], delivers a bleak image of parliamentary mechanisms in light of inquiries widespread use. This article calls for urgent parliamentary reforms in order to allow established public bodies in the political system to regain credibility, and deal with these issues in the absence of public inquiries.

Concluding Remarks

Following the commissioning of the Disclosures Tribunal, it appears that public inquiries are here to reign supreme for the time being. This may have positive implications when one considers the arguments this article has expanded in terms of public inquiries working as a systematic progression towards institutional refinement by means of considering broad questions of policy and administrative oversight, implementation and political frameworks. However, as public inquiries are ‘often a procedure of last resort, to be used when nothing else will serve to allay public disquiet, usually based on sensational allegations, rumours or disasters’[25], their continuous endorsement heightens the paradoxical issue discussed throughout this article, surrounding the legitimacy of a public inquiry. They infer how our political system is gravely incapable of addressing these fundamental problems independently. Once the reign of the Disclosures Tribunal ends, it is vital that we seek structural reforms within the politico-legal sphere to overthrow this heavy reliance on public inquiries, and to bolster a clearly illegitimate political system lacking in integrity.

 

[1] M Clifford ‘Farewell to Tribunals’ Irish Examiner (Dublin 1 January 2013) 6.

[2] Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters. Established by the Minister for Justice and Equality under the Tribunals of Inquiry (Evidence) Act 1921, (17 February 2017).

[3] David Allen Green ‘Are Inquiries a Bad Thing?’ (Financial Times, 4 November 2014) https://www.ft.com/david-allen-green/2014/11/04/are-inquiries-a-bad-thing/?

[4] ibid.

[5] G Mitchell, By Dáil Account: Auditing of Government, Past, Present and Future, (Dublin: Institute of Public Administration 2010)

[6] M Elliott, Ombudsmen, Tribunals, Inquiries: Re-Fashioning Accountability Beyond the Courts (August 22, 2012). University of Cambridge Faculty of Law Research Paper No. 21/2012. Available at SSRN: https://ssrn.com/abstract=2133879 or http://dx.doi.org/10.2139/ssrn.2133879.

[7] M MacCarthaigh, Accountability in Irish Parliamentary Politics, (Dublin: Institute of Public Administration 2005).

[8] A Morris, Tribunal of Inquiry into complaints concerning some Gardaí of the Donegal Division (The Stationary Office, Dublin 2008).

[9] 1995 Ethics in Public Office Act.

[10] Supra note 4 225.

[11] J. Beer QC, Public Inquiries (Oxford University Press, Oxford 2011)

[12] ibid.

[13] Tribunals of Inquiry (Evidence) Act 1921 s.2 (a).

[14] F Donson and D O’Donovan, Law of Public Administration in Ireland, (Clarus Press Dublin 2014) [5-04].

[15] I Steele, ‘Judging Judicial Inquiries’ (2004) PL 738-749 740.

[16] Supra note 4.

[17] F O’Toole, Meanwhile Back at the Ranch (Vintage, London 1995) 241.

[18] Dáil Debates, 20 March 1997, Vol. 476, Col. 1261.

[19] S Sedley QC, ‘Public Inquiries: A Cure or a Disease?’ (1989) 52 MLR 469 475.

[20] Supra note 7 [5-14].

[21] Supra note 1.

[22] Supra note 4 216.

[23] ibid.

[24]A Mahon, Tribunal of Inquiry into Certain Planning Matters and Payments (The Stationary Office, Dublin 2012) 22.

[25] H WR Wade and CF Forsyth, Administrative Law (10th ed Oxford University Press, Oxford 2009) 824.

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