Commencement Provisions and the European Union (Withdrawal) Act

Commencement provisions are fairly standard legal provisions are included in most act of parliament. They rarely get much attention but then the same could have been said for the finer points of parliamentary procedure...

A fairly interesting legal argument has arisen in the last few days concerning the commencement provision of the European Union (Withdrawal) Act. The argument goes that there is no need to adopt a statutory instrument in order to delay Brexit as section 1 hasn't been commenced yet. Mark Elliott from Public Law for Everyone puts it as follows:

A further apparent difficulty is that, as noted above, section 1 of the 2018 Act repeals the European Communities Act 1972 on exit day. This might appear to suggest that if exit day is not redefined, the 1972 Act will be repealed on 29 March, thus placing the UK in breach of its obligation under the EU Treaties to give domestic effect EU law. In fact, however, the Government has not yet brought section 1 of the 2018 Act into force. This means that even if exit day was not redefined, 29 March could come and go, and the 1972 Act would remain in place.

Section 1 reads as follows:

The European Communities Act 1972 is repealed on exit day.

But does it need to be commenced? Section 25 says that it does. Section 1 is not one of the provisions stated by section 25 to commence on enactment so subsection (4) would appear to apply. It say that:

The provisions of this Act, so far as they are not brought into force by subsections (1) to (3), come into force on such day as a Minister of the Crown may by regulations appoint; and different days may be appointed for different purposes.

Originally the Withdrawal Bill defined “exit day” as “such day as a Minister of the Crown may by regulations appoint”. This was consistent with section 25 and the requirement to commence section by ministerial regulations. However the definition of exit day was amended, on the government's proposal, to specify the original end time of the two year negotiation period. Section 20 provides that:

“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));

Subsection (2) and (5) aren't relevant for present purposes. Subsections (3) and (4) set out a way of amending the above definition of exit day by statutory instrument. They provide that:

(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1). 

(4) A Minister of the Crown may by regulations—

(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and 

(b) amend subsection (2) in consequence of any such amendment.

That the end date for the UK's EU membership had now been changed is not in question. But whether the underpinning of EU law in UK law, the European Communities Act, will continue is another matter. Do we still need a statutory instrument before the end of the week to prevent the repeal of the European Communities Act on Friday?

On one view no. Section 1 has not effect until commenced. The problem with this argument goes to the heart of what a commencement provision is. A commencement provision is a provision specifying when another provision shall have effect. Commencement orders state the date from which certain provision take effect.

But section 1 already specifies when it is to come into force: 11pm on the 29 March 2019.

Commencement regulations have already been adopted for some provisions of the Act. For example regulation 3 of the European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018 provides that:

The day appointed for the coming into force of the following provisions of the Act is the First Appointed Day—
...
(b) section 6(7) (interpretation of retained EU law);

(The First Appointed Day was 4 July 2018.)

But what would be the point in commencing section 1 on 12 April 2019 if the effect of doing so would be to give it retrospective effect back to exit day.

It is not unusual to find contradictions in legislation. In this case section 1 itself says that it come into force on 29 March. While section 25 says section 1 commences when a minister makes a commencement order. To say that section 1 need to be commenced by a minister is to suggest that the general rule contained in section 25 overrides the specific rule in section 1. The cannons of statutory interpretation say we should go the other way.

In Latin Lex specialis derogat legi generali. In English specific rules override general ones. Since section 1 already says when it enters into force, it exempts itself from the general rule that a commencement order is required.

Just to illustrate the point further. Regulation 4 of the 2018 Regulations provides that:

4.  The day appointed for the coming into force of—

(a) section 23(8) (consequential and transitional provision) insofar as it relates to the repeal of the European Union Act 2011 (to the extent not already commenced); and 

(b) accordingly Schedule 9 (additional repeals) insofar as it relates to the repeal of that Act (to the extent not already commenced),

is exit day.

Schedule 9 lists other primary legislation relating to EU membership which is to be repealed from exit day. Now it would be strange if all these acts were to be repealed while the European Communities Act itself were to remain in force, wouldn't it?

A draft statutory instrument to amend the definition of exit day in accordance with European Council Decision (EU) 2019/476 has been laid before the UK parliament but needs to be approved by both houses to enter into force.

Article 127 of the EEA Agreement

A lot of fairly hopeful Remainers continue to hope that Article 127 of the European Economic Area (EEA) Agreement could keep them in the single market after Brexit. The UK is a signatory to the EEA Agreement which extends the single market to the Iceland, Liechtenstein and Norway.

May be of interest @IanDunt @StevePeers @AllieRenison @GuitarMoog @EmporersNewC @davidallengreen @Sime0nStylites @Usherwood @JMPSimor @JolyonMaugham @_JeremyNicholls @WomaninHavana @jdportes @SarahLudford @CarolineLucas @lisaocarroll @GeorgePeretzQC @PaoloBrennan @riccsallustio66 pic.twitter.com/qrgJ6d2MqL

— Steve Lawrence (@SteveLawrence_) April 26, 2018

Article 127 provides that:

“Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties.

Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”

The UK has not invoked this provision which leads many to think that the EEA Agreement would still apply to the UK after Brexit. Unfortunately this isn't how it works!

Context is everything. Article 2 of the Agreement provides that:

“The term ‘Contracting Parties’ means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States as they follow from the Treaty establishing the European Economic Community.”

Iceland, Liechtenstein and Norway clearly are contracting parties but regarding the EU (the legal successor to the European Community) and its member states, contracting parties could mean:

a.           the EU and the EU member states (acting together),

b.          the EU (on its own), or

c.           the EU member states.

Right, everybody clear now? Well no, but other aspects of the Agreement are less open to interpretation.

Article 2 contains the following further definition:

“the term ‘EFTA States’ means the Iceland, the Principality of Liechtenstein and the Kingdom of Norway;”

Article 28(1) provides that:

“Freedom of movement for workers shall be secured among EC Member States and EFTA States.”

Article 126(1) provides that:

“The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.”

Together these mean that:

First, even if the UK were to join the European Free Trade Association, it would not automatically become an EFTA State for the purposes of the EEA Agreement.

Second, when the EU treaties cease to apply to the UK, the EEA Agreement will also cease to apply. The UK will be neither a "EC Member State" or a "EFTA State" so the free movement of workers provisions will also cease to apply. A transitional deal between the EU and the UK won't help, the UK will need a separate transitional deal with the EFTA states.

In follows that that the phrase "Contracting Party" in Article 127 doesn't refer to a single EU member state, but to the EU in its entirety. The EU could withdraw from the EEA as could Iceland, Liechtenstein and Norway, but an individual EU member state couldn't withdraw in its own right.

There might be an argument to say that the UK remains a contracting party in the Vienna Convention sense, as it signed and ratified the EEA Agreement, but it would be a hollow position without the application of any substantive provisions.

The EEA Agreement is not unique. Pretty much all the agreements the EU signs contain territorial provisions similar to Article 126 of the EEA Agreement. Trade deals with Canada and Japan will cease to apply to the UK from Brexit day unless those countries agree to continue to apply them to the UK after Brexit day.

A questionable charge

(An occasional blog by an occasional blogger.)

Twitter is alive with the assertion that Julian Assange is wanted by Sweden for "questioning" and has not been "charged". In addition we are told that Assange offered to be questioned in London and that Sweden's rejected of this offer is "suspicious".

It is not unusual in media coverage of extradition cases for differences between common law and civil law legal systems to be forgotten. In reality Julian Assange is not wanted for questioning, certainly not in the way as this expression is used in common law legal procedure, ie a police interview.

European Arrest Warrants may only be issued for the purposed of conducting a criminal prosecution not merely an investigation. In Sweden in order to charge an individual with a criminal offence, the investigated person must be brought before a magistrate to be formally interrogated. The person must be present. The evidence is put to him and he is given a opportunity to reply. This is not a police interview. The investigated person has the right to be legally represented. It is only after this procedure takes place that formal charges can be preferred. If charges are preferred a trial follows shortly afterwards.

In Ireland this element of Swedish criminal procedure was described by the President of the High Court in Minister for Justice v. Ollsen as:

"The fact that under the law of Sweden the charge cannot be actually laid in a formal sense until he is returned to be present at the Court cannot under the Framework Decision be interpreted as meaning that a decision to prosecute and try him for the offences has not been made. It is not open at this stage for the respondent to say that he is only sought so that he can be questioned as part of the investigation. It is clear that the process has advanced well beyond that point, and to the point that he will, subject to being afforded his rights to object when again before the District court, be prosecuted and tried for these offences." [2008] IEHC 37, page 17. (The decision was upheld on appeal.)

Almost needless to say, the English courts examined Assange's contention that he was being sought for questioning and not prosecution, and rejected it. In the High Court the judges ruled that:

"Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange." [2011] EWHC 2849 (Admin), para 153.

Thus Assange's offer to allow himself to be interviewed by the Swedish prosecutors in London was disingenuous. The case against him has progressed to an advanced stage and his presence in Sweden is required. This is after all why Sweden requested his surrender.

Ryanair may just be right!

EU regulations rarely make for either good reading. And for the fairly large number of people whose holidays over the last week were somewhat longer than expected, recital 14 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 may make for rather depressing reading:

"As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier."

The media may be full of talk of Ryanair's supposed refusal to respect EU rules on airline passengers, but if volcanic ash causing a flight blackout in Europe doesn't count as extraordinary circumstances, it's difficult to imagine what would!

The Boring Reality of the Lisbon Treaty

Don't get me wrong but the EU is boring, really boring. There's lots of people trying to figure out how to make the EU more accessible to its citizens and who despair at how little attention the EU gets at national level, but then they forget just how boring the EU can be. Seventy years ago Europe was more interesting, but we'll get to that in a moment.

The Lisbon Treaty is an example of what the EU does best: it's mind numbingly boring. It's very long, fairly complicated and almost certain to send you asleep even if you've drunken five red bulls and a few expressos beforehand. The Treaty's a compromise built on another compromise which amends a few old compromises which were themselves based on previous compromises. It's a compromise between big states and small states. Between northern states and southern ones. Between left-wing governments and right-wing ones. Between states with official churches and those with secular constitutions. Between those who would like to see more entrenched workers' rights and those would like to have freer, less regulated markets. Compromise is inherent to the European Union and to the Lisbon Treaty, and it would be difficult to understand either without realising this.

Of course compromise has its downsides. The text is frequently vague and many of its objectives, in the eyes of many, conflict. Thus the EU is pledged to further economic development and sustainable development, free markets and social protection, free and fair trade, and so on. This ambiguousness is what allows opponents of the Treaty to make contradictory statements about what the Treaty means, but is in reality misconstrued. The vagueness exists to allow a degree of latitude in implementing policy choices. What policies get implemented will depend, more on the composition of the European Parliament and Council of Ministers than on any biased and nitpicking interpretations of the treaties. Regardless of what happens on October 2nd, whether trade conducted by European countries is freer or fairer will depend what the European Commission and EU member states, acting together, do on the trade front, and not on any form of words in Nice or Lisbon. If we want a more left-ring or a more right-wing Europe, we'll have to vote and campaign that way.

The Lisbon Treaty is, like all of the other treaties before it, a vehicle for doing things. It sets broad aims on what we desire to achieve and sets the ball rolling. What the EU is doing in five, ten or twenty years times is up to us. I don't like everything that the EU does, no more than I believe that all Irish laws are just and fair, but approving or rejecting Lisbon isn't about whether you dislike this or that policy, but about whether you think the EU should exist as a vehicle for achieving things that simply couldn't be achieved without it, and whether you believe Lisbon will make the EU more effective. You're not going to like everything that the EU does. What it's really about is believing that the project is worthwhile.

There is an old joke on the internet about a Jewish man called Ikey reading a newspaper on a park bench. His friend, who is also Jewish, is walking past and is startled to discover that Ikey is reading an anti-Semitic newspaper. When asked why, Ikey simply responds that other newspapers make him depressed but anti-Semitic newspapers say that Jews are all rich and run the world. In a similar vein the sobering reality of the Lisbon Treaty is that it isn't going to introduce conscription to a European army, re-introduce the death penalty, reduce the minimum wage to €1.84, increase our corporate tax rate, establish a European super-state, force us to accept gay-marriage or any of the other nonsense floating around the internet and on some posters. It just isn't that important. The much more modest reality is that the treaty will reform the EU's voting rules, give the European Parliament a much greater say in passing EU laws, give the Charter of Fundamental Rights and Freedoms legal force (with respect to EU law but not national law), and establish a position of European Council President to replace the current rotating system. Reality can be a bit boring too.

One of the recurring characteristics of EU referendum campaigns is how much the reality of the EU and our membership of it gets distorted. A trawl over claims made in previous referendum campaign's reveal the degree of repeated claims and thing which just didn't happen:

"The Amsterdam Treaty provides the European Union with an embryonic constitution of what, with the establishment of the single currency, will be well on the way to becoming a United States of Europe; and that is tantamount virtually to giving Ireland a new constitution also. The treaty gives legal personality to the European Union for the first time, founding it on principles instead of on its member states, which is a major constitutional step."

Anthony Coughlan, Letter to the editor of the Irish Times, 8 April 1998

"For the most part our people do not realise what is involved - that we hand over what freedom we have left to the faceless bureaucrats of Brussels, that we become a mere province of a new superstate, that our Constitution and Supreme Court become subservient to the European Court. This goes for our churches also."

Fr. Tom Ingoldsby, Letter to the editor of the Irish Times, 29 April 1998

"Politically and constitutionally, however, the most important thing the new treaty would do would be to give to the new European Union what it would establish the constitutional form of a supranational state for the first time, making this new union separate from and superior to its 27 member states. ... This would make the EU just like the United States of America..."

Anthony Coughlan (commenting on the then draft EU reform treaty), Irish Times article, 28 June 2007

A real debate merits and demerits of an international agreement between European leaders, gets buried under an phoney debate about neutrality and abortion. A heavily jaundiced understanding of how the European Union works becomes current, and internet conspiracy theories outweigh the experience of thirty-five years of membership. We get the opportunity to vote no against privatisation and to defend neutrality, even though our own democratically elected government privatised Telecom Éireann and allowed the Americans to use Shannon Airport, all without the EU pushing them one way or another.

Seventy years Europe was interesting but it didn't work. Today the European Union is boring but it works. The Lisbon Treaty is the fulmination of a long process of reform seeking to make the Union work better. It's very difficult to get anyone excited over it or write slogans for posters, but there it is.

Blasphemy: A Response to Eoin O'Dell

In today's Irish Times and on his blog, Eoin O'Dell argues that the Blasphemy offence in the Defamation Bill is unconstitutional and urges the President to refer the Bill to the Supreme Court. As a mere aspiring lawyer it can be difficult to disagree with a university lecturer but I feel I must try.

Mr. O'Dell's thesis is essentially that:

1. The protections afforded to free speech by the Constitution are the same as European Convention on Human Rights.
   
   
2. The Convention requires that punishment for blasphemy can only be justified when the material complained of creates a risk of public disorder.
   
   
3. Since the Bill doesn't require that the blasphemous material should create such a risk, it's unconstitutional.

While I have doubts about the first point, it's his second argument on which I think he falls. The Constitution and the Convention are quite different documents, a point which can easily be demonstrated by comparing their respective provisions on the freedom of expression.

"1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law."

compared with:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

(No points for guessing which is which.) Admittedly, to a large degree the differences are mostly in style and not substance. Both set out a right and subject it to a series of qualifications. If they are ever going to be found to be in conflict, I don't think such a conflict is likely here.

Among the reasons, in the Convention, for limiting the freedom of expression the "the prevention of disorder or crime" and "the protection of health or morals" are listed separately. In my opinion it is wrong to assume that a risk of "disorder or crime" must be created before a criminal punishment for blasphemy could be imposed. The protection of morals could, on their own, suffice.

In its recent decision in I.A. v. Turkey, the European Court of Human Rights upheld (admittedly on a small majority) a prosecution for blasphemy in Turkey. In doing so the Court said:

"29. However, the present case concerns not only comments that offend or shock, or a 'provocative' opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.”

30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a 'pressing social need'."

The wording of the Defamation Bill's blasphemy offence which applies to:

"matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and ... he or she intends, by the publication or utterance of the matter concerned, to cause such outrage",

could almost be said to have been based on the above-quoted paragraphs. The necessity for blasphemy to be based solely on the potential creation of public disorder is also defeated by reference to Corway v. Independent Newspapers, where the Supreme Court declared, in effect, that the common law offence of blasphemy did not survive the enactment of the Free State Constitution in 1922. In that case Donal Barrington J. speaking for the Court said:

"34. The [1937] Constitution also introduced (in Article 40.I) a specific guarantee of equality before the law to all citizens as human persons. The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God. It promises to hold his name in reverence and to respect and honour religion. At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.I goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality." (my emphasis)

With both the reference to "morality" in that case and to "public order and morality" in the Constitution (quoted above), the inescapable conclusion is that O'Dell's thesis that an offence of blasphemy could only be justified based on the risk of public disorder is wrong. I think such a law can also be justified based on the potential of blasphemy to cause outrage among and offence to religious believers.

Blasphemy in the Internet Age and other Oddities

On finally reading the soon-to-be Defamation Act, I am struck by the absurdity of section 37. If legislating for a criminal offence of blasphemy wasn't bad enough, section 37 allows for search, seizure and disposal of blasphemous matter. Logical I suppose, but the days — if they ever existed — when you could destroy a blasphemous book by burning all the copies are surely long gone. Publication on the internet will frustrate any powers of search and seizure, and any search, seizure and disposal that might take place would be entirely pointless.

Another curious oddity of the new offence is that it will an indictable offence (placing it in a class along with treason, murder, rape and riot) but one for which you can't be sent to prison (like littering) unless you refuse to pay or don't have the money, that is. As a consequence, people accused of blasphemy will face a jury trial, even though this is normally reserved for people facing fairly stiff terms in prison. Normally when the Oireachtas create new offences, they create them as "either/or" which can be tried either summarily before a district judge or upon indictment before the Circuit Court or the Central Criminal Court.

And another thing. The justification given for enacting a blasphemy law is complete nonsense. The Minister for Justice may well be right to say that they can't — within the terms of the Constitution — repeal all of the 1961 Defamation Act without in some way replacing its blasphemy provision, but there was no need to repeal all of that act. The relevant provisions could have been left unrepealed.

Criminal Justice (Amendment) Bill 2009

Lawyers are not liked as a group and any proposal which they generally oppose is very likely to become more, rather than less, popular because of their opposition. A little over ten years ago the Bail Referendum, was opposed, among others, by a relatively small group of lawyers and was decisively approved by the people and the present Criminal Justice Bill is no different. The proverbial man on the Blanchardstown omnibus isn't bothered by such laws as he thinks that they'll apply to criminals in Limerick and not him. Of course we all know that civil liberties only apply to decent law-abiding middle class types and not gangland criminals from Limerick.

Ireland has always had an ambiguous relationship with jury trials. Historically Grand Juries were detested as being the creatures of the Protestant Ascendancy which passed doubtful indictments on Catholics while refusing to indict their own when the evidence was stronger. In fact one of the first things we did after independence was to remove their remaining judicial powers, thereby abolishing them completely. The Petit Jury remained only to face competition from various military tribunals, the most notorious of which was undoubtedly the Constitution (Special Powers) Tribunal which was empowered, among other things to inflict any punishment it saw fit upon conviction before the Tribunal for any criminal offence whatsoever. As far as draconian legislation goes, we are unlikely to even dream up anything quite so severe these days.

We are now faced with the Criminal Justice Bill which allows for the conviction for membership of a criminal gang before the non-jury Special Criminal Court (the successor to the Special Powers Tribunal) by the uncorroborated evidence of any member of the Garda Síochána. But is it Constitutional? I think the answer is probably yes for the following reasons:

1. Separation of Powers. One of the best arguments against the Bill is that there's no reason for the sudden rush and that we can wait until the autumn when a more expansive examination of the Bill can be performed. However this not a reason for unconstitutionality as the courts will not enquire into the adequacy of debate in the Oireachtas concerning any particular bill.
   
   
2. Under the Presumption of Constitutionality, it's up to those who wish to challenge the Bill to prove that non-jury trials are not warranted. Were this not the case the Government would face the difficult task of showing that the "ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order." I have not yet heard of any reported case of jury – as opposed to witness – intimidation, and I'm not sure if the Government have either.
   
   
3. Interpretation. The Courts will try and save the Bill by interpreting it in such a way as to avoid any potential unconstitutionality. Thus in the absence of any clear statement that an accused person can be convicted on the uncorroborated evidence of a member of the Garda Síochána, the Courts will interpret to say that individuals either can't be convicted on the basis of uncorroborated evidence, or that the Courts should be very reluctant to convict anyone on the basis of such evidence. In short the opposite of what it purports to say.
   
   
4. The get-out-of-jail-free clause. The Bill includes a provision which says:
   

   "Nothing in [this Bill] prevents a court, in proceedings thereunder, from excluding evidence that would otherwise be admissible if, in its opinion, the prejudicial effect of the evidence outweighs its probative value".

   This allows the Courts to say that any potential unfairness brought about by the Bill can be mitigated by trial judges by excluding otherwise prejudicial evidence. It might also, of course, allow trail judges to completely undermine the operation of the Bill, but that’s a matter for another day.

The Referendum Bill

The Government's just published referendum bill is, predictably enough, not what I'd really like, but then I don't exactly get much input on these things. Like previous European Union/Community related amendments, the aim is to maximise what the Government can do in Brussels. The only restrictions being the prohibition on the formation of a common defence (a novelty introduced by the second Nice referendum) and a requirement that the Government seek the prior approval of the Dáil and Senate before adopting the more discretionary elements of the EU Treaties.

I fail to understand why, when the Government always insist that they're not going to give up our vetoes under taxation and foreign policy, they don't include these areas along with common defence as areas which would require further recourse to the people. This would be an altogether simple way of reassuring people over things which aren't going to happen anyway. (I'm preparing my don't-tell-me-I-didn't-warn-you speech.)

As with most of the bills which are about to be guillotined through Parliament, there will be remarkably little time for debate on the merits of the bill or properly consider amendments.

Anyway, here are the relevant parts of Article 29.4 of the Irish Constitution as it would be if the Government's referendum bill is passed this Autumn, along with some annotations.

"3° The State may become a member of the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957).

[ed. European Atomic Energy Community or Euratom continues its separate from, but associated status, with the EU. The Euratom Treaty is, other than essentially procedural amendments left as is.]

4° Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples. [ed. A novel provision]

5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 ("Treaty of Lisbon"), and may be a member of the European Union established by virtue of that Treaty.

[ed. Lisbon merges the hitherto separate legal entities of the European Union and the European Community, thereby creating a "new" European Union. The "new" EU is nonetheless pretty much the same as the old EU, save for the changes introduced by Lisbon itself.]

6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—

i the said European Union or the European Atomic Energy Community, or by institutions thereof,

ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or

iii bodies competent under the treaties referred to in this section,

from having the force of law in the State.

[ed. The language of sub-section 6 essentially repeats that introduced by the Third Amendment as enacted in 1972.]

7° The State may exercise the options or discretions—

[ed. This relates to areas which are not really "necessitated" by EU membership, but which the State can opt-in or opt-out of. A similar provision was first inserted by the Amsterdam amendment.]

i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies,

ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), [ed. This relates to our flexible opt-in/opt-out to the Schengen acquis.] and

iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State,

[ed. Another flexible opt-in/opt-out but this time relating the EU's Area of Freedom, Security and Justice, under which the bulk of Schengen Area rules are now made. This paragraph would also allow the State to join the Schengen Area.]

but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

8° The State may agree to the decisions, regulations or other acts—

i under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity,

ii under those treaties authorising the adoption of the ordinary legislative procedure, and

iii under subparagraph (d) of Article 82.2, the third subparagraph of Article 83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice,

[ed. These relate to the harmonisation of criminal law (both substantive and procedural), including the ability to expand the areas of criminal law subject to possible harmonisation, and the establishment of a European Public Prosecutor. These are areas under the flexible opt-in/opt-out arrangements under the Area of Freedom, Security and Justice.]

but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

9° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State. [ed. this was inserted by the second Nice referendum.]"

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.

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.

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!

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.

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).

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.

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!

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.