Tuesday, June 30, 2009

O'Keeffe Action Inadvisable

It is difficult to come to terms with the reality of child sexual abuse, much less the devastating effect it has on its victims. When Louise O'Keeffe was in primary school she was abused by the one person who should have been there to protect her, her school principal Leo Hickey. In 1998, some 25 years after the abuse was committed, Mr. Hickey pleaded guilty to 21 sample counts of child sexual abuse. Shortly afterwards Ms. O'Keefe sued her former teacher and the State for damages. She won (in default) against the teacher but her claim was contested by the State.

Late last year the Supreme Court dismissed her claim that the State was liable for the actions of the principal of the primary school she attended. National (Primary) Schools are run by their boards of management which in turn are responsible to the Schools' patrons. Most of the State's national schools are Catholic and their patrons are normally Catholic bishops. Under arrangements, which date back some 180 years, the school is largely (and these days almost entirely) financed by the State which otherwise has no role in the day-to-day operations of the school. It is admittedly a rather strange system that most of the State's schools are owned and operated by the Church but funded by the State, but there it is.

Decisions over staff at a National School are taken by its board of management and are not imputable to the State which is not liable in tort for decision taken by the board of management. A Catholic National School cannot, in any way, be considered as an agent or a part of the State. Moreover, merely giving money to an organisation does not make the State vicariously liable for any action or omission that organisation did or failed to do.

In last Wednesday's Irish Times (June 24th) it was reported that Ms. O'Keeffe plans to take her case to the European Court of Human Rights in Strasbourg. It is quite common for people who've lost before the Supreme Court to rest their hopes of final vindication before the Strasbourg court. Unfortunately, this is not a guarantee of success. The European Convention on Human Right now enjoys some status in Irish law and its provisions are regularly pleaded before the courts (typically in conjunction with the Constitution). It is notable, however, that the Convention wasn't pleaded before the Supreme Court in this instance.

In the Times article Ms. O'Keeffe's solicitor referred to a decision of the Strasbourg court in Costello-Roberts v. the United Kingdom. On first glance that case looks promising. In it, the Court found that Britain could not "absolve itself from responsibility by delegating its obligations to private bodies." To conclude, however, that Ms. O'Keeffe could succeed based on this point is to confuse two different kinds of legal duties, namely:
  1. the legal duty of States to ensure that ensure that human rights are respected within their territory, and

  2. the legal duty to compensate individuals as a result of injuries caused to them by the State, its servants and agents (in layman's terminology, people employed by the State and people acting on behalf of the State).
In Costello-Roberts — a corporal punishment case — the applicant failed in a civil action against the school because what had been done to him was neither illegal nor tortuous, as the school could avail of the (subsequently repealed) defence of reasonable chastisement. His human rights were infringed, not because his was barred from suing the State (an issue which did not arise), but because it wasn't possible to sue the people who were actually responsible.

In contrast, it was not doubted that sexual abuse was (and is) illegal in Ireland or that the Ms. O'Keefe's teacher could be criminally prosecuted and held tortuously liable for his actions (which he was). It is also clear from the Supreme Court that Ms. O'Keefe could have sued the school's board of management and/or its patron, the Bishop of Cork and Ross. (Although any action now would, in all probability, be statute-barred.)

When the authorities were finally notified, action was taken. Had the authorities been told about allegations of abuse at the time, and done nothing, things would be different. But this does not appear to have been suggested in this case.

In the circumstances I don't believe the State would lose before the European Court of Human Rights, in respect of then unreported instance of child sexual abuse. Unfortunately, all the empathy in the world will not change the legal realities of Louise O'Keeffe's case.

Wednesday, June 24, 2009

Denis Riordan Strikes Back

I thought we had heard the last of Denis Riordan! Not so long ago the Limerick IT lecturer — who was once jailed for contempt of the Supreme Court — had two Isaac Wunder orders made against him. That should have — or so I thought — ended his days of appearing in person before the courts.

Back in the day one Mr. Isaac Wunder took several actions against the Hospitals Trust, claiming to be the legitimate owner of a winning ticket in the Sweepstakes. He was subsequently banned from further litigation unless he first obtained the permission of the Supreme Court. This seemed to work against Mr. Wunder but doesn't appear to have deterred Mr. Riordan who infamously took a case in the High Court against all of the then serving members of the Supreme Court, and then proceeded to tell two Supreme Court judges that they were corrupt (hence his brief stint in jail).

Mr. Riordan is a prolific failed lay plaintiff and has appeared before the courts on innumerable occasions. He has failed every single of these actions. This and his apparent contempt for the country’s highest judges has done little for the idea that civic minded citizens are entitled to challenge the government and parliament on issues which matter to the public as a whole but not them in particular. The courts need to move toward the position that only legally represented, non-litigious plaintiffs should have standing to take these kinds of actions, or else a return to once strict standing requirements will become ever more likely.

Barely needless to say, his latest action has been dismissed on all counts yet again. One of his claims was that the Court of Criminal Appeal was invalidly constituted as it had no judges permanently assigned to it. (The CCA is constituted on an ad hoc basis and consists of a Supreme Court judge, a High Court judge and a Circuit Court Judge.) The Supreme Court regretted that Riordan had doubtful standing for challenging the constitutionality of the Court of Criminal Appeal, given that he had never been charged with an indictable offence. "Yet," I can hear them murmur.

Thursday, June 18, 2009

Those Guarantees...

There's a fair amount of discussion out there over the guarantees the government has been negotiating in order to get us to sign up to Lisbon. They haven't been agreed yet but I think I'm fairly safe to say that they'll fall into the Danish formula: a decision of the European Council along with a promise to tack a protocol onto the treaties at the earliest opportunity, widely anticipated to be Croatian accession in about two years time. Proponents of the treaty will say the guarantees are legally binding. Opponents will say that the treaty's content hasn't been changed. Both will be right. All the while some of us will have to whisper that since the Lisbon Treaty wasn't going to introduce conscription or force every man woman and child to have an abortion anyway, it wouldn't really matter if the guarantees didn't have legal force, as none of it was going to happen anyway!

The tragedy of EU referendums isn't that we are being asked to vote again, or that the argument will be the same as the last time, or even that the arguments will be the same as both Nice referendums, Amsterdam, Maastricht and so on. The tragedy is that it really doesn't have to be like this.

When we joined the European Community back in 1973, it was reasonably clear that we'd need to amend the Constitution. The government of the day decided on a minimalist approach. The approach was to add a single section to article 29 providing for EC membership. As enacted the Third Amendment stated:

"3° The State may become a member of the ... the European Economic Community .... No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State."

The result was an unqualified acceptance of the supremacy of European Union law over the Constitution. No part of the Constitution is, at least in theory, immune from being overridden by EU law. The provision has been amended several times but more or less remains intact. But the most noticeable element of all of this is that no other EU member state inserted a similarly unqualified provision into their constitution.

For example Article 23 of the German constitution (known as the Basic Law) says:

"(1) With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79.

(2) The Bundestag and, through the Bundesrat, the Länder shall participate in matters concerning the European Union. The Federal Government shall keep the Bundestag and the Bundesrat informed, comprehensively and at the earliest possible time.

(3) Before participating in legislative acts of the European Union, the Federal Government shall provide the Bundestag with an opportunity to state its position. The Federal Government shall take the position of the Bundestag into account during the negotiations. Details shall be regulated by a law."

What is truly astonishing about the Irish Constitution is its profound silence as to why Ireland is a member of the EU, what we want to achieve by EU membership, the procedure for ratifying EU treaties and what matters we prefer to reserve for national decision-makers. The German Basic Law provides us with a template of what we could do with our own constitution. I'm not arguing that we should copy it into the Irish Constitution, but inserting references to the "principle of subsidiarity", "basic rights" and commitment to "democratic, social and federal principles", would be a start.

There is a huge potential for a constitutional amendment on the Lisbon Treaty to spell out what the limits are in relation to the EU and, in short, to provide the electorate with the very assurances the government will be seeking for our European partners this weekend in Prague. This way, voters could, by reading a few short pages, know what they were being asked to approve, without having to read an entire treaty or study EU law in university. It's all quite simple really!

Monday, June 15, 2009

Verhofstadt for President?

All in all the European Parliamentary elections were reasonably predictable: the Christian Democrats remain the largest group in Parliament, but no group has overall control. Before the elections a great many left-wingers — including Commission Vice-President Margot Wallstrom — were hoping the European Socialist Party would nominate an alternative candidate to current Commission President Manuel Barroso. But European Socialist Party big-wigs decided against this, knowing full well that a thumping majority of member states are led by centre-right governments.

This notwithstanding, it has been reported that Socialist leader, Poul Nyrup Rasmussen, is currently doing the rounds trying to gather support for former Belgian Prime Minister Guy Verhofstadt. But frankly the odds on a Verhofstadt Commission must be pretty high! The Socialists, already the behind the Christian Democrats in the out-going Parliament received a drubbing by voters in the election. If the incoming Commission President should reflect the results of the Parliamentary elections, Barroso has the better claim to that position.

That being said, Barroso isn't a done deal and in the past, when the Commission President was decided solely by member states, early front runners had a habit of being beaten by compromise candidates. So could Verhofstadt, a Liberal, be that compromise candidate? Hardly! Verhofstadt's problem is that is too federalist for his own good. He was mentioned for Commission President before and rejected for this very reason. Barroso, on the other hand enjoys the support of his own party, the Christian Democrats and Europe's largest centre-left governments: Portugal, Spain and the United Kingdom.

That the European Parliament is hung is no guarantee that Barroso won't have the numbers on the day. He had them the last time in not altogether dissimilar circumstances.

Saturday, June 13, 2009

The Small Claims (Protection of Small Businesses) Bill

On Wednesday the government accepted, in principle at least, Fine's Gael's Small Claims (Protection of Small Businesses) Bill. Of course the number of private member's bills which, unlike this one, actually make it onto the statute book are few and far between (one every five years is probably an overestimate). Our legislature more often acts like a forum where politicians can rant at each other without unduly upsetting the public, who very rarely pay any attention.

The core element of the bill is to do something which really ought to be automatic: it proposes to raise the maximum claimable amount before the Small Claims Court (the District Court for civil cases) from €1,269.74 to €3,000. It's pretty obvious that this change is overdue given that the figure was originally denominated in pounds. In fact, it was last changed by the 1997 by the District Court rules. (Another curious feature of the bill being that all it proposes to do is to amend a statutory instrument.)

It is always of some curiosity to me that while civil servants at the Department for Finance seem to know everything about inflation, their colleagues at the Department for Justice appear to have never heard about it. Thus acts and statutory instruments are still regularly enacted with maximum fines denominated in fixed amounts. And while government departments and agencies regularly rack up the various fees applicable to their services, no statutory scheme has been put in place to increase fines and claim limits — such as those that apply to the District Court and the Circuit Court — in line with inflation.

As a consequence the severity of fines doled out by the courts can sometimes depend more on the age of the act rather than the severity of the criminal offence. Not so long ago a man was finned for running a bar without a drinks licence. A District Judge fined him €500, even though the maximum fine for the offence was £50 (that's €63.50 in today's money).

Tuesday, June 9, 2009

Exit Declan Ganley

In all fairness to Declan Ganley, he ran a strong campaign in North-West and did extraordinarily well for a man nobody had even heard of 18 months ago. But it was not meant to be. Late yesterday after calling a recount only to lose 3,000 of his own votes, he packed it in and went home.

The problem with Ganley was that his actions never matched his rhetoric. While Ganley professed pro-European views, Libertas ran a campaign based on disinformation and scaremongering. These were not the actions of a group of people who supported the EU but not the Lisbon Treaty. The aim of the exercise was to get a no vote and they weren't bothered too much about how they got it. In addition they were happy to play hide and seek with the Standards in Public Office Commission over their funding, and I was never really disabused of the idea that the whole enterprise was bank rolled by Ganley himself.

Libertas' conversion to an EU wide political party — to think they were originally meant to be a think-tank — appeared to be executed with a similarly abandon. Their desire to find partners across the EU led them to align themselves with a variety of fringe parties, few if any of which subscribed to Ganley's pro-EU anti-Lisbon views, and who included La Destra a group of Italian neo-fascists.

In the end, Libertas was always a one-man band and its leader's decision to retire for politics will doubtlessly make it easier to pass the second Lisbon referendum in October and will leave those opposing the Treaty to the usual suspects.

Saturday, June 6, 2009

Fianna Fáil's bazaar election strategy

So, you're a political party facing what are probably going to be the toughest elections in your history. You have an MEP in each European constituency which most commentators figure you might just about hang on too, although there's a question mark over Dublin. So what do you do? Easy! Run two candidates in all four three-seater constituencies, even though the polls indicate you'll barely have half the amount of votes required to get both elected.

Breathtaking stupidity!

Wednesday, June 3, 2009

How many or how much of our laws come from Brussels?

The old rather clichéd joke goes that 90% statistics are made up in the last ten seconds, but this is precisely what comes to mind when people mention that 84% (the figures given vary) of our laws come from Europe. The Liberal Conspiracy have a really good article trying to unearth the reality behind the numbers but the truth is that it's impossible to (honestly) give a figure.

You can't apply maths to Acts of Parliament because it's impossible to know the relative importance of one act over another, in precise terms. Some legislative acts set out far reaching reforms while others just make minor changes to previous legislation. And deciding whether an act belongs to the former category or to the latter is in it-self a highly subjective value judgement.

Leading questions on Lisbon

The headline figures in Monday's Irish Times/TNS mrbi opinion poll look quite good - 54% yes, 28% no and 18% don't know. Unfortunately experience from previous referendums show that:

  • the yes vote always decreases during the actual campaign and
  • most of the don't knows will become nos on polling day (I'd say about three fourths).

At the moment my bet is that the real figure is much more like a 55-45 split, which is hardly a huge margin, particularly given there's still five months to go. The real problem, however, is really the question, not the answer but the question:

"In light of the commitment to allow Ireland to retain an EU Commissioner under the Lisbon Treaty, along with legal guarantees to deal with other Irish concerns on neutrality, abortion and taxation will you vote Yes or No in the second referendum on the treaty later in the Year?"
The obvious catch is that much of the debate during October's referendum with doubtlessly concern whether or not the promises and guarantees offered to the government are really legally binding at all. Leading questions tend to result in the desired answers and the Times have left themselves wide open to getting the poll result they wanted.

Against this we can say that a great many people probably ignore the actual wording of the question and just indicate which side of the debate they're currently on. Put another way: supporters of Youth Defence (just an example) will probably say they will vote no, regardless of how the question is put, as the have already made up their minds.

It's all very well and good to second guess the polls, but a simple "Lisbon: Yes or No" would have saved us all the trouble.