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February 19 2014

Racism as Excessive Legalism

We rightly celebrate that we live in a society where law and order prevail. The capacity to follow established rules allows for the smooth operation of the many necessary transactions that make up our everyday life. And the law, among other things, guarantees that we as citizens can access certain goods and services by right…

The post Racism as Excessive Legalism appeared first on Critical Legal Thinking.

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October 14 2013

An Assault on Human Dignity, An Assault on the Rule of Law: Direct Provision in Ireland

Direct ProvisionThis opinion piece first appeared on KOD Lyons blog on Friday, 11 October 2013. KOD Lyons in a human rights and criminal law firm based in Dublin, with substantial expertise in immigration and asylum law

 

Dr Liam Thornton is a lecturer in law and director of clinical legal education in the Sutherland School of Law

The system of direct provision is 13 years old this year. In April 2000, the system was established as a means of dealing with the relatively large numbers claiming asylum, which it was argued, was leading to accommodation shortages, particularly in the Dublin area. Some 13 years later, despite a huge fall in the numbers claiming asylum and a change in government, the system of direct provision remains intact. Over those 13 years, asylum seekers, migrants, non-governmental organisations, politicians of various hue, lawyers and academics have constantly highlighted the horrific conditions of enforced poverty in direct provision, hoisted upon asylum seekers exercising their legal entitlement to have their claims for refugee/subsidiary protection/leave to remain determined.

In light of Carl O’Brien’s series of articles on direct provision in the Irish Times, the plight of those forced to spend many years in this system, has once again highlighted the significant problems with direct provision. The response of the Minister for Justice, Alan Shatter TD is minimal at best. While welcoming the publication of inspection reports (as long as it includes all inspection reports over the last 13 years), this does not deal in anyway with the significant amount of time asylum seekers in Ireland are condemned to the modern day migrant Magdalenes’ of Ireland. The reliance on a supposedly faster system for determining protection claims in the (yet to be seen) Immigration, Residence and Protection Bill is not good enough.

The Northern Ireland High Court has already refused to return a Sudanese family to Ireland on the basis that the best interests of the child members of this family would not be protected in Ireland. Given the porous border between Ireland and Northern Ireland, the Ministers for Justice and Social Protection should take note. In the Irish High Court, a challenge to the system of direct provision is currently underway and working its way through the court.

The approach of successive governments since 2000 to the social and economic rights of asylum seekers has shown scant regard to any notion of the rule of law operating within the system of direct provision or in the social welfare system generally. There is no legislative basis for the direct provision system and the derisory payment of €19.10 per week per adult asylum seeker (€9.60 per child) made by the Department of Social Protection is outside its powers, as they are legislatively barred from making such regular weekly payments as a supplementary welfare allowance payment, due to the habitual residence condition.

The assault on the rule of law as a constraint on government power continues. The assault on human dignity by the system of direct provision also continues. It remains to be seen whether the current court challenge to the system of direct provision will bring about a situation where the socio-economic rights of asylum seekers are respected by Ireland. For now, asylum seekers coming together themselves, human rights organisations like the Irish Refugee Council, Nasc, the Irish Immigrant Support Centre, the Free Legal Advice Centres and Doras Luimní continue to highlight the inherent injustice, unfairness and inhumanity of the direct provision system. Lawyers, practicing or academic, with an interest in ensuring the rule of law and human rights, trump unrestrained government power, need to add their voices to call for an end to the direct provision system.

April 16 2013

The Rule of Law, Judicial Independence and Ireland

The rule of law is an important concept in most western democracies, however precisely what it means is hotly debated. The former Law Lord, Lord Steyn, described it as follows:

For my part two core meanings of the rule of law are essential to an understanding of our public law…The rule of law is a term of political philosophy or institutional morality. It conveys the idea of government not under men but under laws….In its second sense…its general focus is to constrain the abuse of official power. It protects a citizen’s right to legal certainty in respect of interference with his liberties. It guarantees access to justice. It ensures procedural fairness over much of the range of administrative decision-making by officials.

Whereas Judith Shklar has suggested that the expression ‘rule of law’ is meaningless and

…may well have become  just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter

While debates over the exact meaning of the rule of law will continue  over the last number of days there have been heightened tensions between the Government and the judiciary as regards a number of key issues that raise questions as regards the rule of law in Ireland. These issues first came to light in an article on a speech by Mr Justice Kelly as reported in the Sunday Business Post  (Broadsheet has picture of this here).  At the core of Mr Justice Kelly’s remarks was the argument that judicial independence in Ireland is being demolished ‘brick by brick’, due to the implementation of measures arising from the judicial pay referendum and proposals on appointment for specialist personal insolvency judges under the Personal Insolvency Act 2012. A statement by the Association of Judges of Ireland (AJI), has re-emphasised these key points and also noted concerns with on forthcoming referenda that will impact on judges: abolition of the Seanad and impact on removal of judges and establishment of specialist family courts. No mention is made of the proposed Court of Appeal. It should be noted that the Chief Justice Susan Denham, has raised the need for such courts over the last number of months (see here, here and here). Minister Shatter’s response has been rightly cautious in the hope of limiting what has now become somewhat of a constitutional crisis, however Mr Justice Adrian Hardiman’s response last night seems to have ensured that this crisis will continue. This morning, the Master of the High Court, stated that a “sense of judicial entitlement” is responsible for the current crisis. However, the President of the High Court has now issued a short statement, ‘clarifying’ the role of the Master of the High Court (i.e. not being a judicial officer holder) and expressing support for comments of the AJI, of which the President of the High Court is not a member.

A key question I have is why are judges raising these concerns now and why the issues they have chosen to raise concerns for are regarded as the most pressing issues? Some judges are painting a picture of themselves as victims of a particularly pernicious government agenda to destroy the rule of law.

A key theme that has emerged over the last number of days has been a lack of consultation on these changes between the government and judges. In terms of the judicial pay issue, this is hardly a fair assessment by the AJI given that the outcome of the judicial pay referendum made perfectly clear what would occur: cuts to pay would apply in the same way it applied to higher civil servants, judges were not been singled out for cuts over and above other sectors (and if they had been, this would have been a clear attack on judicial independence). The issue of the role of the Seanad and removal of judges from office is a fair point, but the purpose behind this reform (whether you agree with it or not) is hardly focused on making it easier for the Dáil to remove judges. Nevertheless, serious consideration has to be given to this issue so as to ensure strong protection against judicial removal in all but the most serious of circumstances.  The worry expressed by the AJI as regards court reforms merit consideration, but the call for such changes have come from the ranks of the judiciary.  The wording of these constitutional amendments has yet to be released, and hopefully will be issued in proposal form, so as to allow all sectors of society to argue for changes that may be identified to strengthen the proposals made.

If this crisis achieves anything, then hopefully it will turn the spotlight onto the judicial appointments process in and of itself. The current appointments system for some judges is set down by the Courts and Courts Officers Act 1995. The government still has the sole power to appoint the Chief Justice and the Presidents of the other courts. In addition, the government can decide themselves whether to ‘promote’ a judge to a higher court. For all other ‘ordinary’ judicial vacancies, the Judicial Appointments Advisory Board, recommends to Government who to appoint. Individuals may apply to be considered for appointment. However, the JAAB, simply submits a list (alphabetically and not based on merit) and it is then for the Government to advise (i.e. order) the President to appoint that/those individual(s) as judges. Given the constitutional limitations in place it would not currently be possible for the Oireachtas to legislate on a wholly independent appointments system, unless there was a constitutional amendment (or removal) of Article 35.1 of the Constitution. However, the Irish Council of Civil Liberties have made recommendations for strengthening the independence of judicial appointment process under the current constitutional set up in its 2007 report, Justice Matters.

Last week, Mr Justice Frank Clarke, made a significant contribution to the debate on issues of judicial appointments and judicial pay. Mr Justice Clarke made these comments in a public fora and his full speech was made available for all to see.  This must be contrasted to the forum where Mr Justice Kelly made his comments, a private address to a function of a private company. The legal and courts system  are no longer simply concerned with the commerce of the rich and the crimes of the poor. If the issues that Mr Justice Kelly raised were so fundamental to the rule of law, the question must be posed as to whether this was the appropriate forum to raise  these concerns.

Establishing independent mechanisms to decide on both appointment and pay have become increasingly clear due to the controversy in the last few days. For now, calm heads will hopefully prevail and the ratcheting up of this controversy is not in the interests of the judiciary, the Government, the public or for the protection of the rule of law itself.

March 06 2013

The Rule of Law and Access to Justice in Ireland

On Saturday, 2 March 2013 the Department of Justice and Equality hosted a seminar on Constitutional Reform in relation to the Courts in Ireland. While the need for such reform is quite clear, it is surprising that there is not a similar impetus to ensure access to justice for all in Ireland. The Programme for Government of the Fine Gael and Labour coalition gave a commitment to create  a permanent Civil Court of Appeal and the establishment of a distinct and separate family court. Referenda will be held in the Autumn on proposals to reform some of the current court structures. The impetus for such reform is set out in Minister Shatter’s speech delivered to the seminar. Long delays in the Supreme Court and the the cost to individuals and business in having such long waiting times for disputes to be ultimately determined is a core driving factor for this reform. Minister Shatter also noted Ireland’s obligations under Article 6 of the European Convention on Human Rights (right to speedy determination of disputes) and the domestic transposition measure, the European Convention on Human Rights Act 2003.  The Chief Justice, Susan Denham, in her contribution echoed the sentiments of Minister Shatter noting:

The current situation in the Supreme Court and the Court of Criminal Appeal is unsustainable, it is untenable, it cannot be defended. An appeal certified as ready yesterday is in danger of not getting a date for hearing until mid 2017. The most recent appeals from the general list that have been given dates were certified in July 2008. All other things being equal and without any measure of priority, an appeal certified as ready yesterday is in danger of not being given a date until mid 2017, effectively a four and a half year waiting time.

Denham CJ’s speech was reported widely in the media (see here, here, here and here). One of the interesting aspects to this reporting was the focus on how effective systems of adjudication and dispute resolution is needed as it may damage Ireland’s economy into the future. While not quite a rallying call for “the best small country in the work in which to do business” (or on Twitter #TBSCITWIWTDB), the media reporting of this event equated access to justice and the need for reform as being more compelling solely due to potential impact on prosperity. Denham CJ’s paper was more nuanced than this, with impacts on the economy being (rightly) an aspect of concern in arguing for reformed court structures. Denham CJ’s argument for reform was four fold:

  1. Litigants have a right to a speedy resolution of disputes;
  2. Delays on appeals from the Commercial Court in the High Court may impact on the broader economy;
  3. Delays impact on the ability of courts to assess the functions of the government and other regulatory agencies of the State; and,
  4. Delays impact on Ireland’s international obligations, with the European Court of Human Rights finding a three year delay to be unacceptable in its decision of Superwood Holdings v Ireland.

That said, a strong undercurrent throughout the paper delivered by the Chief Justice, related to the necessity for court reform and independence of the judiciary so as  to attract  investment i.e.:

The development of a Court of Appeal is of significant importance not only structurally, but is necessary to maintain the internationally recognised standing of Ireland as a democratic State, for the People, but also as a good place to do business.

Judicial independence is also critical to commerce and business in Ireland, and to international corporations coming to Ireland and setting up business here.

The former Chairman of the Federal Reserve Bank of the United States often remarked that the rule of law is the single most important contributor to economic growth [reference omitted].

Something that was missing from the contributions by both Minister Shatter and Chief Justice Denham was any discussion on the inability of individuals or business (in particular small and medium sized enterprises) to access justice. While the case for reform of the current court systems and structures has been clearly made, there seems to be no appetite for political or judicial discussions on the significant limits placed on those seeking access to our courts in the first place. Delays in consideration for  civil legal aid continue to increase. Those seeking the services of the Legal Aid Board have to wait between 1 and 1o months for the first appointment with a solicitor (as of at December 2011, the last date of statistics available). The Legal Aid Board recognised that while this was a snapshot of a particular time, waiting times for its services were increasing.

Over the last number of years, Supreme Court judges in the United Kingdom have raised concerns as regards reform of legal aid and access to justice (see here and here). This week, the President of the UK Supreme Court, raised concerns about the reform of legal aid provision in the UK, noting:

…if you start cutting legal aid you start cutting people off from justice … affecting their rights.

While reform of court structures is very important and the forthcoming Autumn referenda on courts issues is welcome, it is also necessary for a conversation to take place at all levels of society as regards access to justice in Ireland. The Free Legal Advice Centres (FLAC) has  highlighted the need for proper civil legal aid provision since the 1960s. In FLAC’s 2009 Report, Civil Legal Aid in Ireland: 40 years On, FLAC notes the significant level of unmet legal aid need in Ireland and calls for a properly resources system of legal aid and advice in Ireland. So as well as ensuring Ireland becomes #TBSCITWIWTDB, we also need to remember that reform of courts is all well and good, but for many in Ireland, these changes will not impact on their ability to access justice in the first place.  Increasing access to justice is also a key indicator of our respect for a society operating under the rule of law.

Many thanks to Dearhbail McDonald for sending me on Denham CJ’s paper. I should also note that while I am a member of FLAC Council, all views expressed in this blog post are mine alone.

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