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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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Direct Provision: the implications of N.H.V. v Minister for Justice and Equality

Direct Provision: the implications of N.H.V. v Minister for Justice and Equality

Marie O'Reilly - JF Law

“Work offers dignity and the best means of integration, and reduces the cost to the State”

-A person living in Direct Provision expressing their desire to work[1]

Introduction

On May 30th, 2017, the Supreme Court ruled in favour of a Burmese man’s appeal over the blanket ban preventing asylum seekers to work or seek entrance to the labour market. This judgment, N.H.V. v Minister for Justice and Equality, represents a revolutionary but long overdue departure from the current legislative positions. This article will outline the relevant legislation currently outlawing asylum seekers from working and argue that access to employment is a basic human right. It will examine the landmark case of N.H.V. v Minister for Justice and Equality, before setting out how the legislation currently being drafted is likely to be implemented. Finally, this article will critically analyse other attempted reforms to the asylum system, including Direct Provision, before concluding that this ruling is but the first step towards a fair and just system for migrants with pending asylum applications.

Current Legislation

The prohibition on employment is enforced by virtue of section 9(4) of the Refugee Act 1996 whereby an applicant shall not “seek or enter employment or carry on any business, trade or profession” before a decision is made with regards to their immigration application.[2] This legislation was reinforced with the promulgation of the International Protection Act 2015 which expressly prohibits the seeking of or entering employment under section 16(3)(b).[3]

Ireland and Lithuania are currently the only two EU member states, which unequivocally prohibit employment during the asylum procedure notwithstanding the duration of time spent awaiting a verdict on their application.[4]

Basic Human Right

Access to the labour market is intrinsic to personal freedom, self-determination, and human dignity, while the adverse consequences of prohibition from employment are innumerable. This interdiction engenders self-depreciation, stagnation, and social exclusion. The prolongation of prevention from access to the labour market can cause an individual’s skills to become obsolete or can result in a lack of confidence and sense of worthiness which act as further barriers to gaining employment when the prohibition is revoked. The HSE has conducted qualitative research into the negative impacts of denying employment to individuals living in Direct Provision, and ascertained a positive correlation between prolonged idleness, which is a concomitant to unemployment, and mental health and psychological problems.[5]

Accordingly, the right to work appears as a fundamental human right in the framework of many international agreements such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the European Social Charter, and relevant International Labour Organisation Conventions.[6] For example, Article 23(1) of the UDHR states that “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”[7] Ireland’s current blanket ban on the right of asylum seekers to work or seek employment  therefore appears to be  in breach of these international agreements.

The Irish Constitution acknowledges that people living in Ireland have certain fundamental personal rights, not all of which are expressly stated in the Constitution, but may be implied or derived from it.[8] Indeed, it was in finding that the interdiction was “in principle” unconstitutional that the Supreme Court unanimously ruled in favour of the Applicant in the N.H.V. case, in relation to the outright ban on the right of asylum seekers to work while their immigration applications are pending.

N.H.V. v Minister for Justice and Equality

The applicant in this case, a Burmese citizen, arrived in the State on July 16th, 2008, and made an application for refugee status the following day. In 2009, his application was rejected at first instance, and again on appeal by the Refugee Appeals Tribunal. The challenge to this decision failed in judicial review proceedings in July 2013 and again in February 2014.[9]

In 2013, the applicant received an offer of employment and applied to the Minister for Justice and Equality for permission to accept the offer. The Minister refused to grant permission, stating that he was precluded from doing so under section 9(4) of the Refugee Act 1996. N.H.V. then instituted proceedings in the High Court, challenging the interpretation of section 9(4), and pursuing a declaration of the incompatibility of the section with the Charter of the European Union, the European Convention on Human Rights, and the Irish Constitution.[10]

The Supreme Court found that, as the current asylum processing system has no statutory time limit for an application to be decided upon, the “absolute prohibition” on asylum seekers to seek access to the labour market is contradictory to the constitutional right to attempt to obtain employment.[11]

The judgment centred on the degree to which non-citizens, as “human persons,” are eligible for protection under constitutional rights. O’Donnell J distinguished between constitutional rights attached to citizenship, such as the right to vote, and rights that all those in the state, notwithstanding their immigration status, are free to avail of as “human persons.”[12] He stated in his judgment that the freedom to work, or seek employment, is an innate “part of the human personality.”[13]He continued that under the court’s interpretation of Article 40.1 of the Constitution, aspects of rights which were part of the human personality could not be indefinitely precluded from non-citizens, and held that the right to work was an unenumerated right derived from the Constitution, and therefore could be enjoyed by non-citizens.[14]

Implementation of new legislation

 

This landmark judgment concluded with the court confirming adjournment from making any formal orders for a period of six months to allow the enactment of new legislation by the legislature, who would have to decide how to address the situation.[15] The judgment was delivered on May 30th 2017, exactly six months to date, and the declaration of a new order in relation to this issue is eagerly anticipated.

 

The government has been urged by many lobbyists and working groups that the best way to proceed is to align Ireland’s asylum system with other Member States as a member of the Common European Asylum System. It could efficiently do so by opting in to the recast Reception Conditions Directive which sets minimum standards for the reception of asylum seekers.[16] This Directive recommends that asylum seekers be granted access to the labour market after a maximum period of nine months without first instance determination on their refugee or subsidiary protection applications,[17] where the delay is not attributed to the applicant. Member States implement the Directive in a discretionary manner; several States affix restrictions to the right to work,[18] while other member states permit employment before the nine month benchmark- such as Greece and Sweden, which accord immediate labour market entrance to asylum seekers, and Germany, where the right to employment is acquired two months subsequent to submission of an application for refugee or subsidiary protection status.[19]

The Irish Refugee Council has recommended in their policy paper regarding the right to work for international applicants that access to the labour market for asylum seekers should be granted no longer than six months after an application is submitted to the IPO. This proposed timescale is deduced from the fact that it is the same period after which an asylum seeker may request information from the IPO as to when a recommendation will be made on their application, under Section 39 (5) of the International Protection Act 2015.[20] The UNHCR also endorses this recommended six-month benchmark.

Conditions and Restrictions

The IRC has also called for no conditions or restrictions to be attached to the right to work “such as restricting it to particular professions or sectors or that people cannot be self-employed.”[21] Nevertheless, it has already become apparent that the right of asylum seekers to enter the labour market will be impeded by a number of limitations administered by the government.

It is probable that access to work will only be permitted in certain “restricted sectors of employment.”[22] A government spokesperson attempted to repudiate claims that such an action would be discriminatory by highlighting the current “relatively low” level of unemployment in Ireland in an endeavour to justify the government’s alleged plans to only permit access to work in areas where there are increasing levels of unemployment.[23] This would assuredly signify severely limited, if not unattainable access to sectors such as health. While the Supreme Court ruling in N.H.V. v Minister for Justice and Equality found the right to work an integral part of human dignity and freedom under the Constitution, these restrictions would infringe, yet again, on these unenumerated rights.

Furthermore, regardless of an asylum seeker’s work status, they will remain obliged to stay in Direct Provision.[24] This will pose an additional array of difficulties, in that employment will have to be secured a reasonable distance from Direct Provision residences.

Other Reforms to the Asylum System

It is widely acknowledged that applications for international protection in Ireland are subject to a severe processing delay, spanning months and even years. The paramount factor for this backlog was the split system in processing applications[25], but this was reformed earlier this year, on January 3rd, with the promulgation of the “single procedure” under the International Protection Act 2015. This new legislation permits applications for refugee status and subsidiary protection in one application, with the intention of drastically reducing the time spent by asylum seekers in Direct Provision.[26] While the UNHCR has welcomed the approach, it must be acknowledged that it will take a while for the system to be effectively applied retrospectively, taking a considerable amount of time to clear the backlog of applications.

C.A and T.A. (a minor) v Minister for Justice and Equality

The living conditions in Direct Provision centres have been a topic of controversy since their establishment in April 2000. The inhabitants are given a meagre weekly allowance of only €19.10 a month, an amount which has remained unchanged over seventeen years despite recommendations from a number of working groups.[27]

In 2014, C.A. and T.A. (a minor) v Minister for Justice and Equality saw a challenge to the Direct Provision System on a number of grounds. The applicants were successful in several of their claims: some of the house rules of Direct Provision centres including unannounced room inspections, monitoring of presence, requirement to notify intended absences and rules against having guests in bedrooms, and the complaints handling procedure were declared unlawful.[28] The Irish Immigrant Support Centre expressed their disappointment that the paltry weekly payment, and the operation of Direct Provision as a whole were not deemed unlawful.[29]

Interestingly, Mr Justice Colm McEochaidh said that while the applicant’s claim was “doomed”, it was not because the proposition that Direct Proposition was in breach of Human Rights was false, but because the applicants had failed to provide oral evidence and had not cross-examined the witnesses for the opposition.[30]

Conclusion

The current system is undoubtedly fundamentally flawed, but with several aspects of Direct Provision declared unlawful in recent years, a departure from the “multi-layered” process, and new legislation presently being enacted to grant asylum seekers access to the labour market, it finally appears as though the Irish Government has realised the system is in need of reform. Although major alterations are still required, these may act as a prerequisite for further actions. The order due to be delivered will have major implications for those currently living in Direct Provision. An equitable, more just system is eagerly anticipated by asylum-seekers and human rights advocates alike.

[1] ‘Government must opt into EU Directive on asylum seekers’ The Irish Times https://www.irishtimes.com/opinion/government-must-opt-into-eu-directive-on-asylum-seekers-1.3119946

[2] Refugee Act, 1996 http://www.irishstatutebook.ie/eli/1996/act/17/enacted/en/print.html

[3] Human Rights in Ireland- Asylum seekers and the right to work: The Supreme Court Decision http://humanrights.ie/economic-rights/asylum-seekers-and-the-right-to-work-the-supreme-court-decision/

[4] EDAL: The right to work for asylum seekers: Ireland’s prohibition on employment http://www.asylumlawdatabase.eu/en/journal/right-work-asylum-seekers-ireland%E2%80%99s-prohibition-employment

[5] Ibid

[6] Ibid

[7] Universal Declaration of Human Rights http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[8] Citizen’s Information- Fundamental Rights under the Irish Constitution http://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitution_fundamental_rights.html

[9] N.H.V v Minister for Justice and Equality and ors [2017] IESC 35 http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/bba87f6e90ea3c5d80258130004199fe?OpenDocument

[10] Ibid

[11] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[12] https://scoirl.wordpress.com/2017/05/30/nvh-v-minister-for-justice-equality-absolute-ban-on-asylum-seekers-working-is-unconstitutional/

[13] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[14] https://scoirl.wordpress.com/2017/05/30/nvh-v-minister-for-justice-equality-absolute-ban-on-asylum-seekers-working-is-unconstitutional/

[15] https://www.irishtimes.com/news/crime-and-law/courts/high-court/asylum-seekers-work-ban-unconstitutional-says-supreme-court-1.3101419

[16] https://www.irishtimes.com/opinion/government-must-opt-into-eu-directive-on-asylum-seekers-1.3119946

[17] http://humanrights.ie/immigration/direct-provision-still-under-the-spotlight/

[18] 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 Final Report June 2015 http://www.justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf

[19] Irish Refugee Council Policy Paper: The Right To Work For International Protection Applicants July 2017 http://www.irishrefugeecouncil.ie/wp-content/uploads/2017/07/IRC-Right-to-Work-Policy-Paper-30.06.17.pdf

[20] Ibid

[21] Ibid

[22] https://www.irishtimes.com/news/social-affairs/ministers-to-approve-work-rights-for-asylum-seekers-1.3278384

[23] http://www.thejournal.ie/asylum-seekers-work-3709670-Nov2017/

[24] Ibid

[25] Irish Refugee Council Proposal: Proposal For A One-Off Scheme To Clear The Backlog Of People In The Protection Process Before The Introduction Of A Single Protection Procedure http://www.irishrefugeecouncil.ie/wp-content/uploads/2014/12/PROPOSAL.pdf

[26] Rule change should lead to less time in Direct Provision Centres for asylum seekers http://www.thejournal.ie/asylum-seekers-system-3168088-Jan2017/

[27] EDAL: The right to work for asylum seekers: Ireland’s prohibition on employment http://www.asylumlawdatabase.eu/en/journal/right-work-asylum-seekers-ireland%E2%80%99s-prohibition-employment

[28] http://humanrights.ie/tag/c-a-and-t-a-a-minor-v-minister-for-justice-and-equality/

[29] Direct Provision is legal, but some of its rules are not, says High Court https://www.independent.ie/irish-news/courts/direct-provision-system-is-legal-but-some-of-its-rules-are-not-says-high-court-30746605.html

[30] Mother and Son lose challenge against Ireland’s Direct Provision for asylum seekers https://www.independent.ie/irish-news/courts/mother-and-son-lose-challenge-against-irelands-direct-provision-for-asylum-seekers-30744915.html

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Ruaille Buaille Achta na Gaeilge

irish-onlineMuirine Nic Róibín JF law

Ag líonadh na gceannlínte anseo is ansiúd i mbliana, ceist chigilteach agus achrannach is ea Acht na Gaeilge i dTuaisceart na hÉireann faoi láthair . Le hArlene Foster ag déanamh comparáid idir Gaeil an Tuaiscirt agus crogaill santacha, ní haon ionadh é ach go bhfuil cainteoirí Gaeilge na Poblachta ag cur le céile lena gcomrádaithe ó thuaidh chun troid ar son cearta teanga. ‘An Dream Dearg’ a thugtar orthu go léir, agus seans mór go bhfaca tú an ciorcal bán ar chúlra dearg ag leathnú ar fud na meán shóisialta i measc na nGaeilgeoirí. Ach cad go díreach é Acht na Gaeilge? Cad iad na himpleachtaí a bhainfeadh leis dá gcuirfí i bhfeidhm é? Ar oibrigh achtanna teanga i dtíortha eile – san Albain agus sa Bhreatain Bheag mar shampla? Agus an cheist is mó agus is casta – an mbeidh an caismirt atá ceangailte leis an acht seo fiúntach san fhadtréimhse?

Cad é Acht na Gaeilge?

I dtosach báire – cad é Acht na Gaeilge? Is acht teanga é atá á lorg ag na mílte daoine i dTuaisceart Éireann a labhraíonn an Ghaeilge, a thugann tacaíocht nach beag di, a fhoghlaimíonn faoin domhan inti, agus pobal a bhfuil fás millteanach tagtha uirthi le blianta beaga anuas (meastar i gceann seacht bliana go mbeidh dúbail ar an 6,000 duine a fhreastalaíonn ar an gcóras oideachais trí mheán na Gaeilge ó thuaidh).[1] Fuair an Ghaeilge aitheantas oifigiúil mar mhionteanga sa Tuaisceart sa bhliain 1998 le Comhaontú Aoine an Chéasta, ach tá comhionannas le Béarla ag teastáil ag lucht tacaíochta na teanga – cearta, cothromas, cóir an mana atá ón Dream Dearg. Gealladh in alt 28D i gComhaontú Chill Rímhinn go bhforbródh stráitéis chun forbairt na Gaeilge agus na hUltaise a fheabhsú agus a chosaint ach creidtear go ndearnadh faillí ar na forálacha sin.

Easaontas faoin Acht

Tá ceist an Achta Gaeilge ar an dris chosáin is mó maidir leis na hiarrachtaí atá ar siúl chun Feidhmeannas Stormont a athbhunú agus ceist na reachtaíochta teanga mar ábhar mór aighnis idir Sinn Féin agus an DUP. Tá an t-acht seo agus a fhorálacha i gcroílár na n-easaontuithe idir an DUP agus Sinn Féin i Stormont. Maíonn Sinn Féin nach rachaidh siad i gcumhacht leis an DUP gan acht Ghaeilge. Tá feachtas an Dream Dearg, ‘Acht Gaeilge Anois’ ag mealladh idir óg agus aosta chun geata Stormont, ag seasamh an fhóid ar son a gcearta. Tá na dá pháirtithe ceanndána, mí-ábalta teacht ar chomhréiteach maidir leis an acht agus dá bharr, tá an idirbheartaíocht ina stad glan. Meastar go bhfuil troid an achta Gaeilge ag cur riachtanais eile an phobail i nguais. Cé nach bhfuil Acht na Gaeilge an t-aon easaontú idir Sinn Féin agus an DUP (tá ceist an phósta chomhghnéis ann freisin), tá sé fós an bac is mó eatarthu.

Cruthaíodh an-chuid teannais agus coimhlint maidir leis an teanga agus a háit i sochaí an Tuaiscirt thar na blianta. Cé gur teanga do chách í, is é an fhadhb atá bainte léi ná go ndearnadh ‘peil pholaitiúil’ aisti ó thuaidh. Mothaíonn lucht mór daoine, go háirithe Protastúnaigh agus aontachtaithe gur seilbh í an Ghaeilge do na Caitlicigh agus na náisiúnaithe amháin – cé nach fíor é sin. Baineann Sinn Féin leas as an teanga chun lucht leanúna a mhealladh, ach cruthaíonn sé seo deighilt idir na pobail agus cruthaítear droch-dhearcadh roimh an teanga.

Dúirt an Ridire Roland Brimstone gur ‘tubaiste’ a bheadh ann dá dtabharfaí reachtaíocht teanga isteach ó thuaidh. Chuir Brimstone i leith Shinn Féin go raibh ‘uirlis chatha pholaitiúil’ á déanamh den teanga acu. Dar le daoine áirithe ó Shinn Féin, cé go bhfuil an t-aighneas den chuid is mó faoin nGaeilge, is siombail é an t-achrann faoin acht den mheas atá ag teastáil ag na náisiúnaithe ó na haontachtaithe. Chuir Foster i leith Shinn Féin go raibh siad ag iarraidh na haontachtaithe a ‘uirísliú’ agus ionsaí a dhéanamh ar ‘shlí maireachtála na Breataine’. Tá na líomhaintí seo idir na páirtithe neamhriachtanach, an t-aon aidhm ann ná coimhlint a bhreoslú.

Feictear teangacha mar chuid de na boinn do neamh-idirdhealaithe i bhfeidhmiú cearta, mar a fheictear in Airteagal 14 den Choinbhinsiún na hEorpa um Chearta an Duine. Ach fós, tá dímheas agus droch-dhearcadh don teanga léirithe ag roinnt figiúirí suntasacha an DUP – Sammy Wilson ag cur ‘Leprechaun Language’ uirthi agus Gregory Campbell ag magadh na teanga le ‘Curry my yoghurt, a can coca colyer’. Mar a thagair mé thuas, rinne Arlene Foster nasc idir Gaeilgeoirí ag iarraidh cearta teanga agus crogaill santacha ag iarraidh níos mó is níos mó bia. Comparáid mhaslach, mhíchothrom is ea í, a chruthaigh stoirm i measc phobail na Gaeilge agus sna meáin i gcoitinne. Stoirm as a n-eascraíodh fearg agus fíoch, agus a threisigh agus a bhreoslaigh an Dream Dearg. An mhí seo caite d’fhógair an DUP nach nglacfaidís le hAcht Gaeilge neamhspleách, agus tá rudaí thar n-ais ag an bpointe tosaigh.

Ó Thaobh an Dlí de

Tá Plécháipéis cuimsitheach foilsithe ag Conradh na Gaeilge i mí Iúil an bhliain seo caite, ag tabhairt eolas cruinn soiléir  maidir leis an reachtaíocht mholta atá ann. Ag briseadh síos impleachtaí an achta, leagan an Plécháipéis síos na 11 rannóg den acht. I measc na bpríomh-fhorálacha atá ag teastáil ná go bhfaighidh Gaeilge stádas céanna le Béarla, go mbeidh comharthaí dátheangach ar na bóithre, cosaint reachtúil a thabhairt don Ghaeloideachas, riar an cheartais (imeachtaí cúirte agus araile) ar fáil trí Gaeilge agus seirbhisí stáit eile.

Achtanna i dTíortha Eile

Conas a oibríonn achtanna teanga i ndlínsí eile? Tá sé luaite sa Phlécháipéis ó thuaidh go gcoimeádfaí na stráitéis sa Bhreatain Bheag, san Albain agus sa Phoblacht in aigne dá gcuirfí reachtaíocht don teanga i bhfeidhm. Feictear An Bhreatain Bheag mar dhea-shampla do mhionteangacha eile timpeall na cruinne toisc an rath a bhí ag an Welsh Language Act 1993 chun an Bhreatnais a chur chun cinn agus a chothú.[2] Labhraíonn 19% den daonra an Bhreatnais, dar leis an daonáireamh 2011. Cuirtear chun tosaigh an Bhreatnais i gcúrsaí oideachais, cúrsaí craolacháin, seirbhísí phoiblí, sa Rialtas agus i riar an cheartais sna cúirteanna. Tá rogha ag an duine dul os comhair na cúirte i dteanga a rogha. Ina theannta sin, táthar in ann teacht ar dhoiciméid agus ar fhoirmeacha dlíthiúla dátheangacha go furasta. Leis an reacht 2003, cuirtear dualgas diúltach ar Stát na Breataine Bige chun áiseanna a chur ar fáil d’úsáideoirí na teanga.

Meastar go gcaitear £150m in aghaidh na bliana chun an Bhreatnais a choinneáil beo agus seirbhísí a choimeád ar fáil do na cainteoirí – sin £2 an duine sa Ríocht Aontaithe má dhéantar an mata. Dar le plécháipéis Chonradh na Gaeilge, agus é ag bréagnú an maíomh go gcosnódh an t-acht £100m in aghaidh na bliana, ní bheadh ach ‘costas réasúnta’ le híoc chun an t-acht seo a chur i gcrích – £4m in aghaidh na bliana agus £9m mar chostas aon uaire.[3] Faoi láthair, tá deich oiread níos mó airgid caite ar sheirbhísí na Gàidhlige ar an BBC ná atá caite ar sheirbhísí na Gaeilge, in ainneoin go bhfuil níos mó cainteoirí Gaeilge ó thuaidh ná cainteoirí Ghàidhlige san Albain, dar leis an daonáireamh. Dá gcuirfí reachtaíocht i bhfeidhm, bheadh ar an BBC, maraon le comhlachtaí poiblí eile, a gcaiteachas ar sheirbhisí Gaeilge a mhéadú.

Bhí an-tionchar ag an reacht sa Bhreatain Bheag don reacht atá i bPoblacht na hÉireann faoi láthair – The Official Languages Act 2003. An scéal céanna atá ann san Albain freisin leis an Gaelic Language Act 2005 seachas nach bhfuil an ceart ann dul os comhair na cúirte ag labhairt na Gàidhlige. I gcás Ceanada, tá an Fhraincis agus Béarla ar an leibhéal céanna – stádas oifigiúil don dá cheann – a bhuí sin leis an Official Languages Act 1988. Toisc tír dhátheangach atá ann go hoifigiúil, tairgtear dreasachtaí do na seirbhísigh phoiblí nach bhfuil an dara teanga acu, chun an teanga eile a fhoghlaim. Sin ráite – tá codán i bhfad níos mó ag labhairt na Fraincise i gCeanada agus ag labhairt na Breatnaise sa Bhreatain Bheag ná atá ag labhairt na Gaeilge sa Tuaisceart. Sin an deacracht a bhaineann leis an acht – níl éinne cinnte conas a oibreodh sé mar níl aon chás go hiomlán céanna i ndlínse eile. Agus gan chinnteacht, tá sé níos deacaire tacaíocht a bhailiú agus é a chur i bhfeidhm.

Conclúid

Ní féidir teacht ar chonclúid faoin ábhar seo, seachas go bhfuil todhchaí an Tuaiscirt éiginnte. Ba chóir do Shinn Féin agus an DUP teacht ar chomhréiteach agus Feidhmeannas a athbhunú chomh luath agus is féidir ar mhaithe an phobail go léir. Táimse féin ar son na reachtaíochta, ach sílim gur chóir acht a bheith ann ar leas achan duine.

[1] Conradh na Gaeilge,  Plécháipéis ar Acht na Gaeilge (Conradh na Gaeilge 2017) <https://cnag.ie/images/Acht_Gaeilge_%C3%B3_Thuaidh/15M%C3%812017_Pl%C3%A9ch%C3%A1ip%C3%A9is_ar_Acht_Gaeilge_%C3%B3_Thuaidh.pdf> ar an 15ú Nollaig 2017 a osclaíodh.

[2] CF Huws, ‘The Welsh Language Act 1993: A Measure of Success?’, Language Policy, (2006) 5(1) 5:14. <https://doi.org/10.1007/s10993-006-9000-0> ar an 14ú Nollaig 2017 a osclaíodh.

[3] Conradh na Gaeilge,  Plécháipéis ar Acht na Gaeilge (Conradh na Gaeilge 2017) <https://cnag.ie/images/Acht_Gaeilge_%C3%B3_Thuaidh/15M%C3%812017_Pl%C3%A9ch%C3%A1ip%C3%A9is_ar_Acht_Gaeilge_%C3%B3_Thuaidh.pdf> ar an 15ú Nollaig 2017 a osclaíodh.

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No “I” in Students’ Union: The Constitutional Right to Opt-Out

No “I” in Students’ Union: The Constitutional Right to Opt-Out

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Eoin Forde JF Law, JEB

Introduction

The issue of mandatory Student Union membership is one that has reared its head on Irish college campuses many times over recent years. The genesis of modern campaigns can be seen in 2015, with some students of UCDSU wishing to ‘opt-out’ due to the union’s position on the Eighth Amendment.[1] More recently, campaigns across multiple other colleges have picked up steam; DCU, NUIG, and Trinity have all seen students organising opposition to mandatory membership.[2] Some students claim it would aid in ensuring the unions are always working for their members, while others simply want the option to be able to leave if they feel like it. Students’ Union Opt Out Project (SUOOP) in TCD, along with many other campaigns, have cited a fundamental right in justifying their campaign: the right to freedom of association.[3]

This raises some questions. Does the right to freedom of association extend to its corollary, freedom of disassociation? Would this freedom of disassociation extend to a student wishing to disassociate from a student union? Finally, if so does the current TCDSU constitution and joint policy program with the college violate this right?

The Irish Constitution is quite clear in its protection of freedom of association, and outlines the rights of its citizens in Article 40.6:

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality…

(iii) the right of the citizens to form associations and unions.”[4]

 

Precedent for Freedom of Disassociation

The freedom to disassociate was recognised in Educational Company of Ireland Ltd v Fitzpatrick (no.2).[5] In Educational Company of Ireland, Budd J outlined a citizen’s freedom to disassociate in relation to mandatory union membership:

‘[U]nder the Constitution a citizen is free to join or not to join an association or union as he pleases. Further, that he cannot be deprived of the right to join or not to join such association or union as he pleases… and that is tantamount to saying that he may not be compelled to join any association or union against his will.’[6]

This ruling was subsequently applied in Meskell v CIE [1973] IR 121.[7] In Meskell, rail workers were offered revised contracts with the added mandatory condition of membership of a representative workers’ union. The plaintiff, a worker who refused to sign this updated contract, argued that it was “a violation of the individual’s freedom of choice”.[8] Walsh J, in applying the ruling of Educational Company of Ireland, stated:

‘[I]f the Oireachtas cannot validly seek to compel a person to forego a constitutional right, can such a power be effectively exercised by some lesser body or an individual employer? To exercise what may be loosely called a common law right… as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two.’[9]

It is within this ruling where the precedent for challenging the mandatory nature of SU membership lies. The right to disassociate must be respected in contractual agreements, such as contracts of employment.[10] The right to disassociate has since been explicitly referred to in Nolan Transport (Oaklands) Ltd v Halligan.[11] In the leading Supreme Court ruling, Murphy J referenced the constitutionally protected right of disassociation in the context of a union dispute, further cementing its existence and prominence as a protected right.[12]

From this, the question may be put forward to the administration of Trinity and TCDSU – what legal basis is there for enforcing mandatory membership of the TCDSU?

 

College and TCDSU Organisational Structure

Understanding the complexity of the relationship between Trinity and TCDSU requires perusing through many charters, statutes, and policy documents. At its heart is the Consolidated Statutes of Trinity College Dublin and of the University of Dublin, 2010. It is from these statutes that power is delegated from the board to the Student Life Committee and then to the Capitation Committee, chaired by the Senior Dean. From here, funds are appropriated to the various capitated bodies – the CSC, DUCAC, TCDSU, TCDGSU and Trinity Publications.[13]

A “capitated body” is a body in College that receives its funding through student capitation; student contribution fees are collected by College and then distributed to the appropriate bodies. Kieran McNulty, former TDCSU president, summarised the capitation model, stating ‘College does not provide us with any money. It comes from students’.[14]

It is from this process which TCDSU derives the first section of its constitution:

“Membership of the union shall be:

  1. All capitated students.”[15]

While the establishment of the TCDSU comes directly from Trinity’s own charters, in practice the TCDSU is an autonomous body. TCDSU does not have to justify any expenses to College, and College cannot stop the TCDSU from commenting or campaigning on any topic.[16] As a union which is intended to advocate for students of the college, it follows that it must be able to hold positions which may be critical of and disagreed with by the college. A cursory glance at the University Times website offers articles detailing TCDSU’s opposition to numerous college policies; its contract with Aramark Catering, the use of single-use plastics around campus, and the increase of student fees.[17]

As a result, a situation has arisen in which enrolling in College compels membership of a union which is virtually independent of College. In such a system, the only way to remove oneself from this union is to become ‘decapitated’, as it were. The only possible way for this to occur is to withdraw from college itself and unregister as a student.

TCDSU’s Membership Model: Closed SU Shop?

From the outset, it appears the main issue comes with the fact that it is currently impossible to leave the TCDSU without also leaving College itself. There is no legislation or statute that discusses the option of students leaving the union.

Furthermore, TCDSU and College have stated in policy that this membership is a binding and deeply entrenched partnership. The Student Partnership Policy states, ‘All students are automatically members of TCDSU and are members of the University’, and ‘The Students’ Union is the only representative body for all students in Trinity College’.[18] Combining these aspects, TCDSU and College have agreed upon a system which compels membership, offers no option to leave, and forces monetary contribution from its students for the privilege. Such a system has been ruled unconstitutional in the previously mentioned cases. Meskell ruled in no uncertain terms that mandatory membership of a particular union in order to be part of another enterprise is unconstitutional.[19]

International Rejection of Mandatory Membership

Mandatory membership of specific student unions has been legislated against in common law jurisdictions similar to Ireland. Australia has the Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Bill 2005 which protects against colleges compelling payment for any non-academic good or service. New Zealand has a similar act, the aptly named Education (Freedom of Association) Amendment Act 2011. Section 4 of this Act states its purpose as: ‘to uphold students’ rights to freedom of association, by removing any requirement for students to join students’ associations.’[20]

Part II, s22 of the UK’s Education Act 1994 details the requirements to be observed in SU activity, and states:

‘a student should have the right—

(i)not to be a member of the union, or

(ii)in the case of a representative body which is not an association, to signify that he does not wish to be represented by it, and students who exercise that right should not be unfairly disadvantaged, with regard to the provision of services or otherwise, by reason of their having done so.’

The contrast between the position adopted by Ireland in this matter and that of its common law neighbours is stark. Furthermore, it is particularly problematic due to freedom of disassociation being a constitutionally protected right, implied in our written constitution and explicitly recognised by our Supreme Court. It appears that this is an issue which requires examination by College, or possibly the Courts.

Conclusion

A point yet to be addressed by this article is why this is an issue.

As it stands, there are very few students who would argue that their student experience is definitively worse-off due to mandatory membership of TCDSU. TCDSU has done much to support students, with the provision of student spaces, counselling, and other services. The point being made is not regarding the effectiveness of the TCDSU, nor the debate regarding the principle of mandatory membership. The argument is solely regarding the constitutional right to freedom of disassociation, which is violated by mandatory membership.

There is Supreme Court precedent explicitly protecting the freedom of disassociation in similar cases and there is persuasive precedent from similar common law jurisdictions legislating for a voluntary system. At the very least, there is an onus on the State to address this matter, through Department of Education guidelines to Higher Education institutions or perhaps legislation.

This issue could also be resolved by TCDSU and other student unions voluntarily allowing students to ‘opt-out’. If the services offered by student unions in their current form are as beneficial as they purport, there should be very few students willingly opting out of such an arrangement. This would offer students the freedom to disassociate some have reportedly demanded. The resulting situation of student unions having to justify the benefits of membership to its members may also increase the quality of service that it offers, benefitting the student body as a whole.

It also avoids the possibility of a financially draining legal battle, which on the basis of the established precedent would be unlikely to go the way of the student unions. TCDSU and other student unions across the country are finding their positions under threat from student dissatisfaction, divisive policy decisions and encroachment on their authority from the colleges they work with.[21] Perhaps fighting this issue from a position of attempting to justify constitutional infringement is not in their best interests.

[1] Irish Times: ‘Is your students’ union a waste of space and money?’ https://www.irishtimes.com/news/education/is-your-students-union-a-waste-of-space-and-money-1.2397299 (Retrieved 10/12/2017).

[2] University Times: ‘In Three Universities Students Seek the Right to Leave Their Union’ http://www.universitytimes.ie/2017/11/dcusu-becomes-third-union-to-see-leave-campaign-launched/ (Retrieved 10/12/2017).

[3] Trinity News: ‘Head to head: Should students be allowed to opt out of TCDSU?’ http://trinitynews.ie/head-to-head-should-students-be-allowed-to-opt-out-of-tcdsu/ (Retrieved 10/12/2017).

[4] Art 40.6.1®.

[5] [1961] IR 345.

[6] Ibid, at 365.

[7] M. Forde and D. Leonard, Constitutional Law of Ireland (3rd edn, Bloomsbury Professional 2013).

[8] [1973] IR 121, at 131.

[9] Ibid, at 135.

[10] R. Clark, Contract Law in Ireland (7th edn, Round Hall 2013).

[11] [1999] 1 IR 128.

[12] Ibid, at 151, ‘‘The issue was whether the protection afforded by that Act could be availed of where the industrial action to be taken infringed the right of the non-union workmen’s constitutional right of free disassociation”.

[13] Trinity College Dublin Calendar, 2017-18, at 268.

[14] University Times, ‘Amid Increasing Encroachments on Their Freedoms, Students’ Unions Seek to Legislate for Independence’ http://www.universitytimes.ie/2017/04/amid-increasing-encroachments-on-their-freedoms-students-unions-seek-to-legislate-for-their-independence/ (Retrieved 18/12/17).

[15] TCDSU Constitution.

[16] University Times, ‘Amid Increasing Encroachments on Their Freedoms, Students’ Unions Seek to Legislate for Independence’ http://www.universitytimes.ie/2017/04/amid-increasing-encroachments-on-their-freedoms-students-unions-seek-to-legislate-for-their-independence/ (Retrieved 18/12/17).

 

[17] University Times, ‘TCDSU to Lobby College Against Renewing Aramark Deal’ http://www.universitytimes.ie/2017/11/tcdsu-to-lobby-college-against-renewing-aramark-deal/ (Retrieved 18/12/17); University Times, ‘TCDSU Council Votes to Support Motion on Plastic Solutions Campaign’ http://www.universitytimes.ie/2017/10/tcdsu-council-votes-to-support-motion-on-plastic-solutions-campaign/ (Retrieved 18/12/17); University Times, ‘After Vote, TCDSU to Lobby Against Fee Increase for Pharmacy Students’ http://www.universitytimes.ie/2017/03/after-vote-tcdsu-to-lobby-against-fee-increase-for-pharmacy-students/ (Retrieved 18/12/17).

[18] TCD Student Partnership Policy, 6; Ibid, at 19.

[19] [1973] IR 121.

[20] Education (Freedom of Association Act) Amendment Act 2011, s4.

[21] University Times, ‘Amid Increasing Encroachments on Their Freedoms, Students’ Unions Seek to Legislate for Independence’ http://www.universitytimes.ie/2017/04/amid-increasing-encroachments-on-their-freedoms-students-unions-seek-to-legislate-for-their-independence/ – (Retrieved 18/12/17).

 

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