Caroline Bergin-Cross is a PhD candidate at University College Dublin and the author of ‘Electronic Fund Transfers in the Republic of Ireland’, published in 2015 by Lonsdale Law Publishing. She is a Barrister-at-Law and holds LLM (Comm) and BCL degrees. She is currently the Editor-in-Chief of the University College Dublin Law Review. A fully referenced version of the letter is available here.
The spread of mobile phones across the developing world is one of the most remarkable technology stories of the past decade. Consumer adoption of smart phones is growing internationally at a phenomenal rate. Smart phones present significant m-commerce opportunities for all organisations, however, such potential has yet to be realised. To realise such potential there must be engagement with mobile service providers in order to make m-payments secure, private, reliable and easy to effect. The first part of this letter will illustrate what an m-payment is. Part two shall look at the growth of mobile banking, taking into account the implications of same, especially in respect of regulation and privacy. Finally, this letter will discuss the future development of m-payments.
1.1. WHAT IS AN M-PAYMENT?
A mobile payment (m-payment) may be defined, for our purposes, as any payment where a mobile device is used to initiate, authorise and confirm an exchange of financial value in return for goods and services. M-payments are a natural evolution of e-payment schemes that facilitate m-commerce. Mobile devices may include mobile phones, wireless tablets and any other device that connect to mobile telecommunication networks and make it possible for payments to be made. The realisation of m-payments will make possible new and unforeseen ways of convenience and commerce.
There is no universal form of m-payments; rather, purposes and structures vary from country to country. The systems offer a variety of financial functions, including micropayments to merchants, bill-payments to utilities, person-to-person transfers between individuals, and long-distance remittances. Currently, different institutional and business models deliver these systems. Some are offered entirely by banks, others entirely by telecommunications providers, whilst others involve a partnership between a bank and a telecommunications provider.
Mobile phone operators have identified m-payments as a potential service to offer their customers, which will increase loyalty, and generate fees and messaging charges. Financial institutions see m-payments as a form of ‘branchless banking’. Government regulators see a similar appeal but are presently working out the legal implications of the technologies, particularly concerning security and taxation.
1.2. EFFECTING AN M-PAYMENT
M-payments may broadly be classified as a ‘contactless’ or ‘remote’ payment. In a mobile ‘contactless payments’, the payer and payee and the mobile telecommunications device are in the same location and communicate directly with each other using contactless radio technologies, such as near field communications, which use Bluetooth or infra to transfer data. For mobile ‘remote payments’, the transaction is conducted over telecommunication networks such as the internet, and can be conducted irrespective of the location of the payer and their mobile telecommunications device. Creating ease, convenience and trust for end-customers is regarded as critical for the further development of m-payments.
2.1. M-PAYMENT MODEL
In m-commerce, it is often required that personal data, as well as financial data, be exchanged among the transacting parties to facilitate the purchase. This sharing of personal data imposes a risk in the case of data misuse. Even if consumers’ personal data is used correctly, consumers inevitably have to forfeit parts of their privacy when interacting with businesses online. Consequently, trust in the vendor is essential for the necessary disclosure of personal information.
2.2. BENEFITS AND DISADVANTAGES
The benefits of m-commerce will not be realised until the tangible benefits outweigh the intrusion and privacy concerns of consumers. While m-commerce can provide significant benefits and efficiencies for consumers, the potential risks have to be evaluated and appropriate data protection and privacy safeguards must be established, monitored, and reviewed, to lower this risk and significantly reduce any fears that consumers may harbour. Authentication, confidentiality, data integrity and non-repudiation are key issues cited by consumers.
Consumers’ perceptions of the security and privacy controls employed by smart phone service providers are a critical element of their willingness to make m-payments. Such controls should be specified in legislation and governments should adopt legislation which stipulates the standards of service, thereby setting the legal rights of m-commerce consumers. To ensure the robustness of this legislation and governance, an independent objective third party regulatory authority should be established to ensure service providers are fulfilling their obligations under the m-commerce legislation. Furthermore, this will improve consumer confidence that regulatory bodies have sufficient powers to take actions against mobile service providers who do not adhere to such frameworks. Such legislation will help build consumer trust in m-payments and rebut concerns that their personal data can be violated or captured during transmission or by hacking databases and spoofing identities.
2.3. MAIN ISSUES AND CONCERNS
For widespread use and customer acceptance of m-payment services, both perceived and technical levels of security should be high. For customers, privacy should not be compromised and there should be no possibility of financial losses. For businesses, customer authentication is important. As per the general framework of any secure messaging system, confidentiality, integrity, non-repudiation and authentication should be guaranteed by m-payment service providers.
M-payments lack cohesive technology standards. Consolidation of standards in the m-commerce arena is critical and will enable producers and consumers to make investments that produce value. The lack of standards gives rise to many local and fragmented versions of m-payments offered by different stakeholders. Standards need to address security and privacy concerns of consumers as well as interoperability between various stakeholders. Standards formation is a process of negotiation between various stakeholders, more like political negotiations than technical discussions. There is currently no consensus in respect of m-payment standards setting. Certain start-up companies have proposed standards and they hope to make these de facto by being the first movers with strategic advantage and early market selection. The battle over standards occurs both at the firm level and at the inter-consortia level.
Although m-payments may allow parties to make economic exchanges, it is not a form of recognised legal tender. That is, it lacks the status of other payment instruments such as cash, which is a medium of exchange that is authorised, adopted and guaranteed by the government. To overcome this problem, legislation that will make m-payments legal tender must be enacted.
3.1. FUTURE OF M-PAYMENTS
The European Payments Council (EPC) published the latest version of its white paper on m-payments in October 2012. This paper incorporated submissions from 17 parties representing various stakeholders in the m-payments ecosystem. On 29 June 2015, the ERPB, chaired by the ECB, considered the future of person-to-person m-payments and the recommendations of the White Paper. The members of the ERPB subsequently agreed to endorse the vision of allowing any person initiate a pan-European person-to-person m-payment safely and securely, using a simple method with information the counterparty is prepared to share in order to make a payment. In particular, payment service providers offering person-to-person m-payment services should make use of existing infrastructure as far as possible. Moreover, a harmonised process should be created, allowing person-to-person m-payment data to be exchanged between local solutions across borders. It is most unfortunate that the EPC has taken a deferential approach and has decided against introducing regulations or directives to harmonise m-payments across the EU.
3.2. APPLE PAY
Apple Pay is simple to use and works with the cards already owned on devices used every day. As your card details are never shared when you use Apple Pay, and are not stored on your device at all, using Apple Pay on your iPhone, Apple watch, or iPad is the safer and more private way to pay. However, customers need to use a bank card from one of Apple Pay’s partners.
If the customer has a credit or debit card registered with their Apple ID, they can add it to Apple Pay directly. If not, or the customer wishes to add a new card, Apple encrypts the whole process, wrapping up the card details in a unique identifier before handing it over to their card operator.
Assuming the customer is credit-worthy, the operator sends back an authorisation key that is stored in the Secure Element in the iOS device or watch. Secure Element is an industry standard chip and the customer is not relying on Apple alone to maintain the technology. As each one is unique to the device in which it resides, it reliably ties the device to the customer’s account. That way, the card processor knows exactly whose account to debit without passing their details over the network again or handing them to the retailer itself.
Apple Pay has proven to be an extremely safe and secure form of m-payment. To use the payment the customer inputs a six digit passcode rather than four, and payments can only be authorised from iOS devices with near field communication and the device-unique Secure Element chip built in.
Many challenges must be overcome for m-payments to be widely accepted as a mode of payment. Businesses, merchants and consumers have to come forward and make value-producing investments. A regulatory framework and widely accepted standards will be the pillars on which m-payment applications will be built in order to have a robust system which consumers have confidence in.
Consumers’ fears over their data and privacy appear to presently outweigh consumers’ perceived benefits of m-commerce. Consumers’ unwillingness to make m-payments is the greatest barrier to future growth of m-commerce.
Apple Pay has shown that a convenient, secure and reliable m-payment system can be established, however, the deferential approach by the EPC to setting standards and regulations for m-payments is unfortunate. Without a standardisation of m-payments, customers’ unwillingness to use m-payments will continue.
Is mise le meas,
Caroline Bergin-Cross BL
Emily Hancox is a PhD researcher at the University of Edinburgh working on the interplay between norms in the EU legal order and the implications of this for the scope of application of European law. Alongside her PhD, Emily Co-Convenes the Europa Research Group, sits on the Steering Committee of the Edinburgh Europa Institute and is Managing Editor of the University of Edinburgh Legal Studies Research Paper Series. She also teaches Public and EU Law. Prior to moving to Edinburgh, Emily worked as a lecturer at the University of Oxford and was a Legal Trainee at the Office of the European Ombudsman in Brussels. A fully referenced version of the letter is available here.
While there are many urgent and troubling issues one might choose to write about regarding European public law at present, I write to you today with a fairly modest plea. My plea is aimed at the European Court of Justice (ECJ) and implores its members to better respect the rule of law in their decision-making.
It is perhaps always dangerous to invoke such a contested concept as the rule of law in an argument. However, the Member States themselves, as drafters of the Treaties, made clear the commitment of the EU towards the rule of law. Article 2 of the Treaty on European Union (TEU) states:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
A number of meanings can be (and have been) attributed to the rule of law, ranging from a formalistic conception to requiring a full-blown commitment to human rights. At its most basic, perhaps, the rule of law might be regarded as a requirement of consistency that contrasts with arbitrary exercises of discretion. When directed towards the judiciary, the rule of law as consistency requires a coherent line of jurisprudence with some degree of predictability. Respect for the rule of law does not imply that it is illegitimate for judges to overrule earlier decisions. However, in such cases, judges ought to justify and explain the shift.
In the context of the EU the need to respect the rule of law takes on a new dimension. The decisions of the ECJ are binding across all twenty-eight Member States where it is the obligation of national judges and law-makers to interpret and apply those decisions. While, strictly speaking, the ECJ is not bound to follow its earlier decisions, its position within the EU legal order provides a strong argument why the ECJ should aim for consistency.
The ECJ has only very rarely expressly departed from its earlier decisions and the cases in which it has done so are ‘as few as they are celebrated’ (in the words of Advocate General La Pergola). Such cases where the ECJ explicitly overruled its earlier decisions include Roquette Frères (overturning Hoechst), Keck, and Metock (overturning Akrich). More frequently, the ECJ implicitly departs from earlier judgments such as from its decision in Cinéthèque to ERT and Familiapress. It is this latter instance that I want to pick up on and raise in the light of two recent cases regarding access to social benefits for EU citizenship: Dano and Alimanovic.
In Dano the ECJ appears to depart its rulings in Martínez Sala and Trojani, namely that migrant EU citizens, lawfully resident according to national law (but not EU law), are entitled to equal access to any social benefits regulated by EU law. The ECJ focused on the primary rights of Ms Martínez Sala and Mr Trojani to move and reside (Article 21 TFEU) and to non-discrimination on grounds of national (Article 18 TFEU). Ms Martínez Sala, as a Union citizen lawfully residing in the territory of another Member State, fell within the personal scope of the Treaty (para 61) and was thus able to claim equal access to social benefits. Similarly, in Trojani, the ECJ held that while Member States ‘can make residence of an EU citizen conditional on his having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment’ (para 40).
In Dano, however, the ECJ chose not to focus on the position of Ms Dano as an EU citizen lawfully resident in a host Member State. Instead, the ECJ focused its attention on whether Ms Dano had a right of residence under EU law (specifically Directive 2004/38, the Citizens’ Rights Directive). Ms Dano did not have a right of residence under Citizens’ Rights Direct as she lacked sufficient resources (para 81) which meant she could not claim equal treatment with regard to social assistance (para 82). The case clearly departs from the ECJ’s earlier decisions, yet does not expressly say so or provide reasons as to why it is doing so. It might be that the entry into force of the Citizenship Directive signalled the need for a change, but the ECJ does not even go so far as to state this.
In Alimanovic, the ECJ again implicitly overruled its 2009 decision in Vatsouras. Article 24(2) of the Citizens’ Rights Directive permits Member States to derogate from the right to equal treatment as regards jobseekers. In Vatsouras, the ECJ held, notwithstanding Article 24(2), that a jobseeker still falls within the scope of Article 45 TFEU on free movement of workers. A jobseeker could therefore still benefit from the right to equal treatment in Article 45 TFEU (para 36) as regards ‘a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State’ (para 37). The ECJ did accept, however, that a Member State could choose to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (para 38). In Alimanovic, however, the ECJ did not refer to Article 45 TFEU. Instead the ECJ narrows, almost to the point of extinction, this aspect of its decision in Vatsouras, holding simply that social assistance to jobseekers may be withheld under Article 24(2) of the Citizens’ Directive (paras 57-58).
In both Dano and Alimanovic therefore, the ECJ implicitly overrules several earlier cases on the rights of EU citizens. Without explicitly declaring this, the ECJ leaves in doubt the status of the earlier decisions, complicating the position of national judges who have to make their way through the ECJ’s case law. What is more, when the subject matter concerns the rights of EU citizens, a decision to limit these rights warrants justification. In the absence of explanation, the ECJ leaves itself open to criticism for acting arbitrarily or political expediency. I therefore end, as I began, with a plea for greater respect for the rule of law in Europe.
Is mise le meas,
Gary Moloney is a graduate of UCC’s BCL (Law and Irish) programme and is currently pursuing an LLM in International Human Rights and Public Policy. He was a member of UCC’s triumphant Jessup Moot Court team in 2014/15. A former Vice Auditor of the UCC Law Society, he currently tutors first and second year law students in Dlí Bunreachtúil (Constitutional Law). A fully referenced version of the letter is available here..
It is, in my view, quite timely that the Fifteenth Annual UCC Law Conference looks to tackle one of the key elephants of Irish constitutional law; Article 41.2, which ostensibly assigns women a domestic role within the home. For many the observer, this provision, along with Article 40.3.3o, is emblematic of Ireland’s poor record when it comes to matters of gender equality.
Article 41.2.1o holds that the common good benefits from the work of women within the home. As a result, Article 41.2.2o states that women should not be obliged by economic necessity to work outside of the home causing neglect of their duties in the home. It is unquestionably a product of De Valera’s Ireland; a country of ‘happy maidens’, ‘cosy homesteads’ and ‘frugal comfort’. While we have made great strides in recent times with respect to marriage equality and gender recognition, there is still much work to be done. We continually fail over half of our population through discriminatory treatment, preventing Ireland from being a truly equal society in fact and in law.
In Sinnott v Minister for Education, Denham J, as she then was, stated that:
Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women in the home.
With great respect to the Chief Justice, even if that was the intent of Article 41.2, its inclusion sends a negative normative message. It does nothing in practice to empower women, but rather highlights an outdated traditional role which it presupposes women should be inclined to fulfil. Even though the learned Chief Justice argues that ‘[t]his special recognition is of the 21st century and belongs to the whole of society’, it is hard to reconcile that with the discrimination faced by women within Irish society in pay, bodily autonomy and job opportunities. It perpetuates the myth of complimentary gender roles, with the mother seen as the natural caregiver. It actively disregards the rising number of stay-at-home fathers and thereby entrenches traditional gender roles within Irish constitutional discourse.
The Chief Justice’s comments might also be more palatable were this recognition to lead to implementation of oft-forgotten economic and social rights, but this would not appear to be the case. In L v L, the Supreme Court rejected the argument that a housewife who worked exclusively in the home was entitled to an equitable interest in that house, holding that a married woman had to make a financial contribution in the form of actual income for such an interest to be created. Despite recognising that these equitable principles contradicted 41.2, the Supreme Court said they did not have the jurisdiction to engage in the transfer of property within a family. Finlay CJ found this to be the case despite also acknowledging the inconsistency in disadvantaging women who took up their ‘preferred constitutional activity’. Furthermore, in Sinnott, Keane CJ, held that while Kathy Sinnott’s contributions as a primary caregiver to her autistic son were worthy of ‘respect, admiration and compassion’, they were not grounds for damages with respect to the State’s breach of her son’s education rights. So if Article 41.2 doesn’t seem to confer any positive rights on women then what is its purpose? If its role is merely normative in nature then is it one that needs revisiting?
The Report of the Constitutional Review Group (CRG) suggested that a gender neutral version would alleviate some of the concerns raised. Such an amendment would be commendable, also adding some much needed recognition and protection for single parent families. On the recognition of the work of fathers as carers and the duties they hold with respect to care, Murray J in DT v CT held that Article 41.2 as part of a contemporary document could be interpreted so as to include fathers within its remit. Thus, the 10th Progress Report of the All-Party Oireachtas Committee on the Constitution noted that a gender neutral version could arguably be unnecessary. Nevertheless the report provided for a gender neutral alternative, albeit one not as open to including single parent families as that found in the Report of the CRG. Were we to agree with the All-Party Oireachtas Committee’s initial conclusion, an amendment to that effect would still be preferable and would go a long way to addressing core issues. As Professor Mullally has noted in her submission to the Constitutional Convention, ‘domestic care has often remained invisible with little official recognition of its significance to the everyday functioning of society’.
Article 41.2, in its current form, is a patriarchal antiquity which negatively impacts the whole of Irish society by entrenching traditional gender norms which we as a nation should strive to rise above. Its retention is potentially inconsistent with Ireland’s obligations under the Convention on the Elimination of Discrimination Against Women (CEDAW) given its sexist connotations with regards to gender stereotyping. The Ireland of 1937 may have been satisfied with dancing at the cross-roads, but it is clear that the Ireland of 2015 can no longer dance around its treatment of women within Bunreacht na hÉireann.
Mise le meas,
Jeff Walsh is currently completing an M.Litt. in international refugee law in Trinity College Dublin. In the past, he has worked for UNHCR Ireland and the Irish Refugee Council and was the Thomas Addis Emmet Fellow for International Public Interest Law in 2010. He is currently the Vice-Chairperson of the Irish Society of International Law. In this letter he considers the impact of the refugee crisis on the future of the Common European Asylum System. A fully referenced version of the letter is available here.
One can hope that the recent wave of asylum seekers and refugees arriving in Europe from the Middle East and Afghanistan will have a positive impact on the operation and direction of the Common European Asylum System (CEAS) going forward. The current crisis has provided the EU with various challenges. It has raised questions regarding the potential use of temporary protection and further questions regarding the Dublin system, as well as forcing Member States to tackle the issue of burden sharing and relocation on a scale not seen heretofore.
The Dublin system operates under the ‘Dublin III Regulation’. It allows for a determination to be made regarding the Member State responsible for determining a particular asylum claim – thus attempting to eliminate secondary movements of asylum seekers across the EU.
In recent years, the Dublin system has been subjected to operational restrictions from both the European Court of Human Rights (ECtHR) and the Court of the European Union (CJEU). In MSS v Greece & Belgium, the ECtHR held that there were ‘systemic deficiencies’ in the Greek system and, as such, the transfer of asylum seekers amounted to a violation of Articles 3 (right to freedom from torture, inhuman and degrading treatment) and 13 (right to an effective remedy). Shortly afterwards, in NS and ME v United Kingdom and Ireland, the CJEU upheld the ‘systemic deficiencies’ threshold and stated that the transfer of asylum seekers to Greece under the Dublin system breached Article 4 of the Charter of Fundamental Rights of the EU in that it amounted to inhuman and degrading treatment. In a departure from requiring ‘systemic deficiencies’, the ECtHR held in Tarakhel v Switzerland that individual circumstances must be taken into account, meaning that systemic deficiencies are no longer the sole deciding factor in suspending transfers.
While the Dublin III Regulation forms part of the CEAS legislative package, major NGOs, such as the European Council on Refugees and Exiles (ECRE) have stated that ‘the Dublin system fails to ensure that refugees are protected, and wrongly assumes that there are equal standards of protection across Europe.’ Furthermore, ECRE calls for the Dublin Regulation to be abolished and replaced with a ‘more humane and equitable system’.
What effect has the refugee crisis had on the operation of the Dublin system? The crisis has created difficulties for the implementation of FRONTEX, the fingerprint system, important to the operation of the Dublin system, whereby each asylum seeker has their fingerprints taken as part of the registration process when they apply for asylum. The crisis has also highlighted further problems with reception conditions, as highlighted in judgments such as those mentioned above. Recently, questions have been asked of the Hungarian system, leading the German Administrative Court of Dusseldorf to suspend transfers of asylum seekers to Hungary and the Swiss Council for Refugees to call for transfers to Hungary to be similarly suspended. Earlier this month, the Belgian Council of Aliens Law Litigation also suspended transfers of single women asylum seekers to Italy.
It is clear that it will not be possible to return all asylum seekers to the Member States where they first entered the EU, particularly Greece, Hungary and Italy, both in law and in practice. What this means for the Dublin system is unclear. The move towards greater burden sharing through relocation agreements could see the introduction of a more equitable system, as called for by ECRE.
In the face of large increases in the numbers entering Europe to seek asylum, the EU has, so far, opted not to invoke the Temporary Protection Directive, the first asylum-related directive to be enacted under the CEAS in response to the influx of asylum seekers from the former Yugoslavia in the 1990s. There have been calls to invoke the Temporary Protection Directive as a means of coping with the sharp increase in asylum seekers. However, such a move would mean the EU – and refugees – would have to grapple with yet another status, ancillary to refugee status, most likely leading to differences in treatment, in terms of legal entitlements and protections afforded to those in need of international protection. Instead the EU has taken the preferable option of burden sharing and relocation. This route still provides for recognition under the CEAS legislation. Two agreements, reached in September, provide for the distribution of asylum seekers across EU Member States, known as ‘relocation’. In order to be considered under this agreement, the asylum seeker’s nationality must have a recognition rate of 75% or greater in international protection (both refugee status and subsidiary protection) – based on Eurostat figures, this includes Syrians, Eritreans and Iraqis. While these agreements go some way towards easing the pressure on Italy and Greece as frontline states – the second agreement purports to take 43% of the Greece and Italy’s asylum seekers that arrived during the period of July and August – a sizeable number of asylum seekers in Hungary are not being included due to Hungary’s unwillingness to be seen as a frontline state. The agreements are temporary for now, operating within a framework of two years; however, there is a proposal for a more permanent arrangement. This could mean that the Temporary Protection Directive might never be invoked.
In conclusion, it is hoped that some positives can come from the current refugee crisis. There is now the potential for increased integration in terms of asylum procedures across the EU as a result of the refugee crisis. The flow of asylum seekers arriving in Europe, traversing states such as Croatia, Hungary, Slovenia and Austria in order to gain access to Germany, Sweden and Finland has had clear impacts on existing structures, most notably the ability of Member States to partake in the Dublin system. While there are undoubtedly economic considerations in choosing a destination, and indeed it is the right of asylum seekers to choose where to apply for asylum, variations in recognition rates across the Union cannot be ignored. While, practically speaking, new measures to increase harmonisation of asylum procedures can be expected in the coming years, finding agreement at an EU level will be difficult. The recent agreements on burden sharing have served to highlight numerous differences on the issue between Member States. The CEAS will, as it has done, slowly move forward. Whether it can bring all Member States along is another question.
Is mise le meas,
Sarah Slevin is currently a trainee solicitor with Ronan Daly Jermyn, Ireland’s biggest regional law firm. Previously, she studied Law and Irish at undergraduate level in University College Cork and continued to complete an LLM in Business Law for which she was awarded the E-Law Summer Institute Bursary for Postgraduate Study. Her thesis was entitled ‘Personal Guarantees of Commercial Loans: An Analysis of the Legal Protection Afforded to Guarantors in Ireland’. In this letter, she considers the recent Irish Supreme Court decision of In the Matter of JD Brian. A fully referenced version of the letter is available here.
On 9 July 2015, Laffoy J gave judgment on behalf of a three-judge Supreme Court in the case of In the Matter of JD Brian Limited (in Liquidation) t/a East Coast Print and Publicity  IESC 62 (JD Brian). In finding that a valid notice of crystallisation had been delivered by Bank of Ireland over the floating charge at issue, and thus overturning the 2011 decision of the High Court, the floating charge was deemed by the Court to be a fixed charge which took precedence over priority debtors, including the Revenue Commissioners.
The delivery of this judgment brings to an end a legal and judicial interregnum in which the priority status of crystallised floating charges in the context of a winding up remained unclear. However, the comments of Laffoy J, particularly in light of the relative silence of the Companies Act 2014 (the 2014 Act), demonstrate a clear dissatisfaction with the current position of the law. It can be argued that, although the interpretation of the law as it stands may be correct, we are now left in a position that is at odds with modern legal and economic trends.
Finlay Geoghegan J, in the High Court, reasoned that a correct construction of section 285(7) of the Companies Act 1963 (the 1963 Act) gave preferential debts priority over the claim of the bank, irrespective of any crystallisation that may have occurred prior to winding up. In doing so, she refused to follow contrary lines of authority from the UK, such as Re Griffin Hotel  Ch 129 and Re Brightlife  Ch 200. In a supplementary judgment on the outstanding issue of the effect of crystallisation, it was determined that a proper interpretation of the provisions of the debenture document in question, the floating charge could not be said to have been converted into a fixed charge.
The Supreme Court, in contrast, held that the relevant clauses of the debenture displayed an intention on the part of each party, upon crystallisation, to restrict the ability of the company to use the property and assets concerned. A clause under which the company covenanted to carry on the business in a proper and efficient manner did not conflict with established law on crystallisation. On the second matter, that of the effect of section 285(7) of the 1963 Act, Laffoy J expressed the view that to interpret the provision as entitling preferential creditors to priority over a floating charge which validly crystallised prior to winding up would be to rewrite the section itself, as it was clear that the operative time for assessing priority was the time of winding up; any finding to the contrary would, in her opinion, conflict with the will of the Oireachtas.
It should be noted that although this decision follows the previously rejected line of authority in the UK, the position in that jurisdiction has since been legislatively reversed; in particular the Insolvency Act 1986 ensured that crystallised floating charges do not get priority over preferential creditors. This was followed by the Enterprise Act 2002, which abolished the right of the crown as a preferential creditor generally. This reversal follows recommendations regarding the abolition of priority debtors dating back to the opinion of the Cork Committee in 1982.
Despite the clarity with which Laffoy J articulated the operation of the law, the learned judge also highlighted the dissatisfactory result which derived from this interpretation of section 285(7). She highlights the potential of this decision to allow for the creation of a false form of crystallisation, which would secure priority for the debts whilst still allowing the debtor to trade in its assets. As well as this, the judgment draws attention to a lack of transparency arising from the absence of a need to register floating charges which have crystallised, transparency being a crucial principle underpinning the operation of company charges and insolvency law generally.
The enactment of the 2014 Act provided the legislature with an opportunity to resolve this issue by more clearly enunciating the rules regarding the status of floating charges post-crystallisation, particularly as against priority debtors. It also provided the chance to review the necessity of statutorily-protected priority debtors in the first place, given the abolition in England of crown preference (as discussed above). Consideration should have been given to the view, more prevalent in modern times, that offering priority to certain debtors does not accord with the desire to equitably distribute funds on a winding up, or with the need to protect smaller creditors who may suffer more during these events.
However, section 621(7) of the 2014 Act repeats the wording of its predecessor in its entirety. Whilst this may appear to offer little insight into the current thinking of the Oireachtas on this matter, G Brian Hutchinson believes that, rather being an indication of a lack of consideration of the matter, this verbatim repetition could represent a conscious decision to prioritise the effective operation of floating charges over any other policy.
Whilst this may be the case, the concerns of Laffoy J regarding the current legal position remain outstanding and need to be addressed. It may be appropriate, in light of this decision, the changed approach in England, and the recent overhaul of company law generally, to review not only the expression of the current principle in section 621(7), which is patently dissatisfactory, but also the reasoning behind the existence of such priority debtors at all. Although Laffoy J’s legal interpretation of section 285(7) in this case may be correct, it is up to the legislature to decide if it gives the most desirable outcome.
Is mise le meas,
Ciarán Crowley is a graduate of University College Cork (Bachelor of International Law) and Oxford University (Bachelor of Civil Law) and is currently teaching English law in Université Lille II, in France. In his letter he discusses the increased activity of the Court of Arbitration for Sport and the status of Gibraltar as a football nation. To access the full referenced version of this letter please click here.
Martin O’Neill and Roy Keane’s men faced Gibraltar in the first home game of their UEFA European 2016 qualifying campaign on the 11th of October last year, Ireland running out easy victors in a 7-0 victory. The game was noteworthy only in that it represented Gibraltar’s only second competitive international football match since it was accepted by UEFA as a full member in May 2013, following a successful appeal to the Court of Arbitration for Sport (CAS). The original decision, Arbitration CAS 2002/O/410: The Gibraltar Football Association (GFA)/Union des Associations Européennes de Football (UEFA), was handed down by CAS on the 7th of October 2003.
It will not have gone unnoticed amongst football fans how busy CAS has been recently. The Court refused to accept Legia Warsaw’s appeal to be reinstated into the UEFA Champions League qualifiers, following the playing of an ineligible player by the Polish club in a match against Celtic. Further, only last week CAS partially upheld the four-month suspension of Luis Suarez from all football-related following the much-publicised biting incident involving Suarez with Giorgio Chellini at this summer’s World Cup. The Court softened the sanction somewhat to allow Suarez train with his new Barcelona team-mates. It is hoped that the busy Court will now be able to draw its breath.
CAS’s decision to grant membership to tiny Gibraltar, a territory of less than 30,000 people and an area encompassing a mere 2.3 square miles, was not greeted with glee on all fronts. Gibraltar is a British Overseas Territory which remains under the jurisdiction and sovereignty of the UK. This arrangement, tracing its provenance back to the Treaty of Utrecht in 1713, is fiercely contested by Spain who lodged opposition to the Gibraltar FA’s initial request for UEFA membership in 1999. Spain had – not unjustifiable fears – that the Catalan and Basque regions might also apply for UEFA membership. This fear has, however, arguably been quelled since the resounding achievements of Spanish football in club and international competitions since then.
CAS in its judgment made an imaginative distinction between the idea of a ‘nation’ or ‘country’ in the sports law environment (Lex Sportiva) and ‘its common political meaning,’ giving the examples of Scotland, Wales and the Faroe Islands which do not enjoy independent statehood either, but do of course have international football teams.
Whilst the new version of Article 5 of the UEFA Statutes, introduced in July 2001, declared that UEFA membership is restricted to football associations in countries which are recognised as independent States by the UN, CAS held the rule was inapplicable as the Gibraltar Football Association (GFA) had made an application for UEFA membership before the new version of Article 5 was introduce. Such serendipitous timing would prove crucial for Gibraltar.
Under the old rule, membership of UEFA was dependent on a national football association being ‘responsible for the organisation and implementation of football-related matters in their particular territory’. Thus, as the GFA was founded in 1895, making it one of the oldest football associations in the world, CAS held that the GFA ‘indisputably exercised sole responsibility’ for organising football on the territory. It is this change in rule that has since prevented disputed territories like Kosovo applying for UEFA membership.
In the run-up to the UEFA qualifiers, before Ireland’s facile victory over Gibraltar (and subsequently Poland’s, by the very same score line) more idealistic Irish football fans had good reason to have been intrigued about the competitiveness of the Gibraltar team, and to ask inquisitively about how Gibraltar would have fared along the same lines as other ‘water-carriers’ in UEFA international qualifying competitions such as Lichtenstein, San Marino and Andorra. Danny Higginbotham, formerly of Manchester United, has been the most famous player to have played for Gibraltar, qualifying to play under the ‘granny rule’. However, Higginbotham has now retired after 3 caps in friendly matches and the highest-profile squad member for the first qualifying match against Poland was Scott Wiseman of English League One side, Preston North End. The majority of the remaining squad were plying their trade in the domestic Gibraltar league with some players playing abroad in the lower leagues of Israel, England and Wales. Lincoln Red Imps have dominated club football in Gibraltar winning twelve consecutive league titles and recently represented the country in the first round of the UEFA Champions League Qualifiers, going out 6-3 against Faroe Islanders, Havnar Bóltfelag. The cynics have been proven correct, it seems.
Indeed, it is easy to be cynical about a team playing international football with a smaller population to pick from than Dundalk or Swords. However, when such a team upsets a greater power in the game it is undeniable that great joy is brought to neutral supporters around the globe; Italy losing to North Korea in the 1966 World Cup and Denmark beating Germany in Euro 1992, are but two examples.
And neither is the Irish national team immune to such ignominious results, eerily enough in European qualifiers themselves. Ireland’s draw away against Lichtenstein in 1995 in a European qualifier ultimately prevented the team from qualifying for the final tournament. English fans may think of San Marino scoring against them after 8 seconds in 1993, or more recently drawing lesser-known nations such as Costa Rica. Germany, recently crowned World Cup Winners also played Gibraltar on the 14th of November, and only won by a (relatively) modest four goals.
Law and football are becoming more and more acquainted with each other, particularly in CAS as we have seen. The number of legal disputes in football will only increase as the game continues to spread economically, socially and culturally around the globe. While, legal scholars will continue to bicker about the finer points of jurisdiction of international states, the international sports law system, lex sportiva, as well as the increasing influence of CAS, football fans will look on in nervous interest too as the fate of errant and misbehaving players are decided by the court. The nervous ride will only continue for O’Neill’s boys as they navigate a group with not only the minnows Gibraltar, but the world champions, an emergent Scotland and an increasingly impressive Poland.
Is mise le meas,
This letter was due to be published on 20th January 2015. However, due to unforeseen technical difficulties COLR were unable to publish the letter at that time. In the meantime the Government has agreed to prepare new laws to regulate surrogacy and the broader area of assisted human reproduction and associated research, and bring to an end the legal uncertainty in which these services currently operate including the areas of surrogacy and stem cell research.
Annie Nevala is a final year BCL (International) Student at University College Cork. In this letter, she explores the recent developments in the Supreme Court in area of assisted reproduction in Ireland. To access the fully referenced copy of this please click here.
Who is the mother?
A discussion on the desperate call for surrogacy legislation in Ireland
Despite the increased awareness of the use of surrogacy internationally and domestically, the concept currently remains entirely unregulated in Ireland. No form of assisted human reproduction is presently recognised in the Irish Statue Books, although reform in the area of donor-conception is on the way.
This has created a framework where the courts increasingly find themselves teasing out the complexities of new reproductive technologies without any legislative guidance. The recent Supreme Court decision of MR and DR v An t-Ard-Chláraitheoir  IESC 60 (MR) is a clear example of the current legal lacuna surrounding surrogacy in Ireland and demonstrates the desperate need for statutory direction on the issue.
In a six to one majority the State won its appeal against the landmark High Court ruling that the genetic mother of twins born to a surrogate mother was entitled to be registered as their legal mother on their birth-certificates. The case centred on twins born through the use of genetic material from their parents to a surrogate who was the sister of the genetic mother.
Issues arose when the Registrar of Births registered the genetic father as the legal father but refused to register the genetic mother as the legal mother on the basis of the maxim mater semper certa est – the mother is always certain. This age-old Roman law principle dates back to the pre-IVF era where it was presumed that the mother who gave birth to her child was both the legal and the genetic mother. The genetic parents successfully challenged this position in the High Court, where Justice Abbott ruled that the genetic mother was also the twin’s legal mother.
On appeal to the Supreme Court Chief Justice Denham noted that following in the slip stream of modern medical developments in assisted human reproduction, other States have passed legislation to govern and regulate the area but that no such statutory development has yet occurred in Ireland.
Since Ireland has failed to address issues arising from surrogacy the Chief Justice allowed the appeal and quashed the orders of the High Court. The core issue of the case was the registration of a ‘mother’ under the Civil Registration Act 2004 and whether the genetic or the surrogate mother should be named as the legal mother on the twin’s birth-certificate.
The Chief Justice noted that there is no definition of a ‘mother’ in the Irish Constitution. The only two references afforded to the ‘mother’ fall within Article 40.3.3° and Article 41.2.2° which deals with the right to life of the unborn child and the protection of mothers in the home.
Despite the fact that Chief Justice Denham refused to recognise that mater semper certa est is or have ever been part of Irish common law, the Chief Justice indicated that the current legal lacuna surrounding surrogacy gave her no other choice but to allow the appeal. She stated that the issues raised in the case are important, complex and social, which are matters of public policy for the Oireachtas and that the current lacuna in the law should be addressed in legislation and not by the Court.
In separate judgments, Justice Murray, Justice Hardiman, Justice O’Donnell, Justice McKechnie and Justice MacMenamim agreed that the appeal should be allowed while Justice Clarke dissented.
In a country where unmarried fathers have no automatic guardianship rights to their children and where genetic mothers cannot be registered as their child’s legal mother unless physically giving birth to her child (or adopting her genetic child) – one may wonder what will come next. It took the Oireachtas over 20 years to pass legislation to address the legal developments that followed on from the X-case in 1992. It was only in light of the events that followed on from the tragic death of Savita Halappanavar in 2012 that the Irish lawmakers finally got down to action in putting a legislative framework in place.
Surrogacy is not a new phenomenon. IVF-treatment has helped thousands of couples across the globe that cannot reproduce children on their own since the mid 1980’s. The mother in MR was facing a potential childless life, was it not for the option of surrogacy. The State’s failure to recognise the reality of modern-day families and provide equal legal rights to genetic mothers as to genetic fathers creates a serious question of whether the State is properly vindicating the rights of the genetic mother.
As a response to MR, Minister for Health Leo Varadkar issued a press release stating that legislation on assisted human reproduction, surrogacy and gamete donation was long overdue in Ireland. Minister Varadkar claimed that he intended to bring a memorandum for an Assisted Reproduction Bill to Government by the end of 2014, which would be likely to deal with the issue of legal parentage, surrogacy, egg and sperm donation, and other related issues.
Surrogacy was initially included in the extensive Children and Family Relationships Bill 2014, which was introduced in late January 2014. However, due to the pending Supreme Court decision of MR, Frances Fitzgerald (Minister for Justice and Equality) removed surrogacy altogether from the Bill in September 2014.
Ms Fitzgerald felt that there were critical issues that needed to be resolved and that more policy work and consultation was required on the issue. Although surrogacy was removed from the 2014 Bill, assisted human reproduction remained.
Even though the 2014 Bill is welcomed in terms of acknowledging assisted human reproduction, surrogacy has remained in a legal limbo. In a state where lawmakers traditionally have adopted a reactive approach to legal developments, one may only hope that the strong comments from Chief Justice Denham in MR will give the legislature the push it needs to put surrogacy down in writing.
As for the statements made by Mr Varadkar, these have remained merely promises so far. Ireland is still waiting on further legislative developments regarding a potential Assisted Reproduction Bill. It is however hoped that the legislative changes necessary will occur without needless delay.
Is mise le meas,
Flash Boys and Cassandras
Debates on the Regulation of High Frequency Trading are Revived
Róisín Áine Costello
Róisín Áine Costello holds an LLB from Trinity College Dublin, an MPM from the Institut d’Etudes politiques de Paris and is currently an LLM Candidate & Fellow of International Economic Law, Georgetown University Law Center. In this letter she explores the current discourse on High Frequency Trading. A fully referenced copy of this work can be found by clicking here.
In the last twenty years the stock market began a significant shift as a combination of new technology and regulations led to the emergence of high frequency trading (HFT). Through the use of complex algorithms and high-speed internet connections, traders can buy and sell in fractions of seconds, potentially making an exceptionally high number of small profits, sufficiently fast so as to result in significant overall gains. These algorithmic trading systems require little or no human involvement and rely on computerised quantitative models to execute thousands of orders per second. The advances in trading technologies which have facilitated the rise of HFT have also accelerated the speed at which shocks can travel through the financial system at a pace that far outstrips the capacity of regulatory reaction.
Goldstein writing in the New York Times noted, by 2009, HFT yielded billions of dollars a year and accounted for some 60 percent of US stock trades. Although the rise of HFT is regularly presented as a story concerning the rapid advancement of the technology, it is contended that the rise of HFT is, in fact, an unintended consequences of regulation. During the 1990s and early 2000s, a series of Securities and Exchange Commission (SEC) rules were proposed with the aim of aiding individual investors by requiring stock exchanges to compete through prohibiting exchanges from hoarding orders (including the Securities and Exchange Commission, Proposed Rule on the Elimination of Flash Order Exception from Rule 602 of Regulation National Market System). Though the proposal was designed to allow easier matching of buyers and sellers, in fact it resulted in significant complications as the traditional stock market evolved into a complex web of over twelve separate exchanges which now operate, in many ways, as competing technology companies, in which rooms full of computers match buyers and sellers. This proliferation has forced exchanges to compete more aggressively, and as the profitability of exchanges is based partially on volume, HFT has emerged and grown in importance.
In particular, this proliferation has forced exchanges to compete more aggressively, and as the profitability of exchanges is based partially on volume HFT has emerged and grown in importance. Exchanges also began renting space next to the computers powering the exchanges, and, as it takes time for information to travel over networks, those traders whose computers were closest to the exchange’s computer would exchange information fractions of a second ahead of trader’s located further away – fractions of seconds that could mean billions of dollars.
In certain quarters this escalating competitiveness as well as the relative lack of attention granted to HFT is blamed for exacerbating and indeed causing, the 2010 ‘flash crash’, during which the Dow plummeted 1,000 points in just a few minutes. HFT was also at the centre of a scandal involving Thomson Reuters, who were revealed to have sold key market data to high-paying clients two seconds before the markets and the general public received the information thus allowing them, in HFT terms, a significant trading advantage. Yet it is only in the last 12 months that regulators like Eric Schneiderman, New York’s Attorney General have revived the long-running debate surrounding HFT by highlighting the connections between stock exchanges and trading companies – a relationship Schneider has referred to as ‘Insider Trading 2.0’. Of even greater concern to regulators is whether HFT has the potential to increase the volatility of equity markets and contribute to a reduction in investor confidence. Normal accident theory holds no system of oversight can completely exclude the possibility of periodic crises yet HFT appears particularly volatile. In 2011, the Investment Industry Regulatory Organisation of Canada began a crackdown on the ‘manipulative and deceptive’ trading practices associated with HFT.
The most evident and immediate challenge identified by the Organisation for those who would seek to regulate HFT is its preponderance to crash suddenly and, often without warning, causing dives (in confidence and significant losses for traders involved as evidenced, most recently, by the August 2013 crash of the NASDAQ. Indeed the ‘flash crash’, coupled with a number of stock market failures gives this concern considerable weight. In 2012 Knight Capital lost some $440 million after flawed software flooded the market with orders forcing Knight to unload shares at a significant loss and causing the firm to face near bankruptcy before being bought by Getco Holding Co. HFT has entered the headlines in 2014 once more with the publication of ‘Flash Boys’ by Michael Lewis which charts the ‘rigged’ nature of the market. In the weeks before the book’s publication Goldman Sachs suddenly threw its weight behind HFT market reforms following years of heavy investment by the firm in HFT.
In Flash Boys Lewis highlights the case of Sergey Aleynikov, a high-frequency trading programmer at Goldman who, after leaving the firm, was arrested and charged by the FBI with stealing computer code he had developed for Goldman while an employee there. Goldman claimed the code at issue could be used to ‘manipulate markets in unfair ways’ when placed in the wrong hands. As Lewis notes, the question which such claims raise but which remain unanswered is, if the code had such potentials, exactly what potential manipulations were Goldman using it to achieve.
If the code used for HFT is indeed so potentially efficacious in its markets effects it is, surely, time to listen to the Cassandras among us who have been decrying its destructive potential. Goldman through its conspicuous throwing of its weight behind efforts to reform and regulate HFT may in fact be seeking to pass their flash boys off as Cassandras and thus maintain their standing even as the HFT landscape shifts under the watchful eyes of regulators. Whatever Goldman’s motivations the outcome seems to be becoming clearer – HFT is belatedly following the broader pattern which has characterised post-crisis markets which, at least in theory, privileges regulatory foresight over flash in the pan market forces.
Is mise le meas,
Róisín Áine Costello
Stephen Daly is currently a DPhil candidate and Tutor at Lincoln College, Oxford University. He holds a BCL (International) from University College Cork and an LLM (Corporate Law) from University College London. In this letter, he explores the relationship both the UK and Ireland have with the taxation of multinational corporations.
It has been much the repetitive mantra of late that Ireland and the UK have a ‘shared history’. Recent events in Ireland relating to tax however demonstrate both symmetries and asymmetries of this ‘shared history’. Whilst the introduction of new taxes is met with the same disdain in both jurisdictions, the relationship with multinationals offers an interesting distinction.
It is fair to say that the Irish public has not warmed to the idea of a Water Charge. This levy has spurred a series of demonstrations, with more set to occur. In December last year, during the second stage of the Water Services (No 2) Bill (2013) 123 in the Dáil, Luke ‘Ming’ Flannigan famously invited Minister of State Fergus O’Dowd to drink a glass of ‘piss’ water he had retrieved from Castlerea in Roscommon. Sinn Féin’s Mary Lou McDonald, elsewhere, has written that, ‘We are committed to fighting water charges as we believe that fresh, free-flowing water is a basic human right.’
Much the same resistance accompanied the introduction of the Poll Tax by Margaret Thatcher’s Tory government in the late 1980s. The Poll Tax was a Community Charge which was levied at a fixed rate per adult, with reductions for the unemployed, disabled and students. There was considerable anger at this new tax. A series of protests were organized, with some famously turning into riots.
Such symmetry between Ireland and the UK as regards backlash against additional charges should come as little surprise. Indeed, since time immemorial, it has been a cardinal rule that the public will not take kindly to new taxes. As far back as 1776 Scottish philosopher Adam Smith reflected upon the fact that novel taxes inevitably generate discontent:
Every new tax is immediately felt more or less by the people. It occasions always some murmur, and meet with some opposition. The more taxes may have been multiplied, the higher they may have been raised upon every different subject of taxation; the more loudly the people complain of every new tax, the more difficult it becomes to either to find out new subjects of taxation, or to raise much higher the taxes already imposed upon the old.
This dissatisfaction is often aggravated by the perception of unequal treatment: that not everybody is paying their fair share in the new circumstances but rather that what is being observed is the working class being squeezed to the benefit of the wealthy.
The UK has borne witness in recent times to such aggravated discontent. The perception of inequality came in the form of contrast between austerity measures affecting the populace and the ‘Sweetheart’ deals afforded to large multinational corporations. During the course of 2010 and 2011, it came to light that HMRC (the UK tax authority) had arrived at large settlements with both Vodafone and Goldman Sachs. A backlash ensued, fuelled in particular by protest groups who were apoplectic about the apparent benevolent treatment. For instance, the group UK Uncut forced the closure of up to 30 Vodafone stores by virtue of its protests and subsequently took a judicial review action against HMRC in relation to the Goldman Sachs deal.
However, such outspokenness in relation to inequality of treatment, with regard the tax affairs of multinational companies, has not travelled so well across the Irish Sea. This is particularly interesting in light of the six continuous years of austerity which have been inflicted to date. To this end, the accusation by the European Commission of a ‘Sweetheart deal’ between the Irish Revenue Commissioners and Apple has received a much more muted response in Ireland. The Commission has claimed that the Revenue provided selective treatment to Apple, thereby breaching EU State Aid rules. In effect, this amounts to the charge that Apple paid too little tax in Ireland.
Perhaps this contrast in public mood serves to underline a cultural difference between Ireland and the UK generally as regards relationships with multinationals. Before the US Chamber of Commerce in March of this year for instance, Taoiseach Enda Kenny remarked that it was the Government’s goal to ‘make Ireland the best small country in the world for business.’ Indeed, Barrister Kieran Corrigan presciently picked up on the Irish attitude to businesses and taxes back in 2000, noting the ‘public inclination towards [State-sponsored] tax avoidance.’
Whilst there is undoubtedly a shared history between Ireland and the UK, it is not beyond the scope of asymmetries. Whilst the introduction of novel taxes produces an equivalent discontent, a corresponding anger towards large businesses is largely absent.
This is not to promote or criticise the prevailing Irish attitude to multinational companies, but merely to outline the curiosity in the contrast. It is notable that a subsequent report into the settlements with Goldman Sachs and Vodafone in the UK found the deals to be ‘reasonable’. Only time will tell then whether the relative Irish reticence is justified.
Is mise le meas,
Cillian Bracken graduated from UCC with a BCL (Law and German) degree in 2014. Since graduating he has worked in an extensive range of legal research roles in the areas of public and corporate law. In this letter, Cillian Bracken explores the recent developments in the superior courts of the Transfer of Sentenced Persons Convention for the law of Habeas Corpus in Ireland and its potential implications. For the fully referenced version of this letter, please click here.
Despite a dearth of coverage, the law regarding Habeas Corpus in Ireland with reference to one of the most successful international treaties of the Council of Europe, the Convention on the Transfer of Sentenced Persons (TOSP), is undergoing significant litigation at the moment, potentially with the capacity to affect application of the Convention and its relevant domestic Irish legislation, the Transfer of Sentenced Persons Act 1995 (as amended by the Transfer of Sentenced Persons Act 1997), on the transfer of prisoners between Ireland and elsewhere, most significantly the country with the largest number of Irish expatriates and closest Irish ties, the United Kingdom.
Some background; on 21 March 1983 TOSP was opened for signature by the European Committee on Crime Problems, the committee within the Council of Europe entrusted with the overseeing and coordinating of the Council’s activities in the field of crime prevention and crime control. Its purpose was, and still is, as referenced by TOSP’s preamble to ‘achieve a greater unity between [the Council of Europe’s] members’, ‘develop international co-operation in the field of crime law’ and ‘require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.’ Essentially TOSP allows a person sentenced in a contracting State to be transferred to their home country to serve the whole of their sentence or the remaining part thereof. This is a noble enough intention allowing those imprisoned abroad to serve their time near their families.
Ireland duly signed TOSP in 1986 and then ratified the convention and passed it into domestic law via the 1995 Act. TOSP currently has 64 contracting States, including all the members of the Council of Europe barring Monaco, as well as the USA, Australia, Israel and Canada amongst others.
The criteria necessary to be fulfilled for a transfer remains reasonably straightforward: the sentenced person in question must be a national of the ‘administering State’, that is the State the person is to be transferred to; the judgment is final; at least 6 months remain to be served on the sentence; the person consents to the transfer; the act for which the sentence was imposed constitutes a criminal offence according to the law of the administrating State; and both the administrating State and the ‘sentencing State’, that is the State who imposed the original sentence, consent to it. Section 1(1) of the 1995 Act defines ‘sentence’ as being ‘any punishment or measure involving deprivation of liberty ordered by a court or tribunal …’. Sections 7(4) and (5) of the act serve to translate the sentence, either allowing for the continuance of the sentenced imposed by the sentencing State, or the adaptation of the sentence ‘to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed’ respectively.
Notwithstanding the current issues to be discussed, TOSP and the Act remain functioning and integral parts of our modern criminal legislative framework; in 2013 alone 14 applications for transfer were received by the Department of Justice, with 12 from the UK, up from 6 UK applications in 2012.
The current TOSP difficulties arose in Sweeney v Governor of Loughan House Open Centre & Ors  IESC 42. On 7 December 2006, Vincent Sweeney was convicted of serious drug offences in the UK and sentenced to 16 years of which, pursuant to the UK Criminal Justice Act 2003, one half would be served in custody and one half would be served ‘on licence in the community’, a system that does not exist in Irish criminal law and it is upon this point that the issue hinges. On 16 December 2008, upon his consent, he was transferred under the 1995 Act to serve the remainder of his sentence in Ireland, on the basis of a warrant issued by the High Court on 22 October 2008, which by way of judicial review he wished to have declared ultra vires the act through the action. Sweeney contended that the sentence imposed by the English court should be understood as comprising two halves; 8 years in custody and 8 years on licence in the community at liberty, and so Ireland, on the basis of the act and TOSP, could only administer a custodial sentence of 8 years as only this falls within section 1(1) of the Act as well as the fact that such a system does not exist in Ireland, and as such 29 March 2014 should be considered the expiry of his sentence.
Counsel for the respondent argued the semantic point was that the sentence imposed by the English court was one of 16 years imprisonment, which the State was obliged under the terms of TOSP and the act to enforce. However the 16 years was subject to the Irish system of 25% remission for good behaviour and so the appellant could potentially be liable for release on 12 December 2016. The respondents underlined that Article 10 TOSP requires that ‘the administering state shall be bound by the legal nature and duration of the sentence as determined by the sentencing state.’ It was further argued that the appellant had consented to serving the remainder of his 16 year sentence, and had been informed of this prior to transfer.
Murray J in his judgment came to the decision that the appellant was liable only for the 8 year custodial sentence on the basis that the descriptive terms of the sentence imposed clearly made a difference between the custodial and the licenced sentences and occurred by operation of law and not by virtue of remission. He also placed great weight on the interpretation of section 1(1).
Interestingly, the court did not discuss the implications for Anglo-Irish relations with reference to the act, given the potential consequences due to the political nature of a large number of Irish nationals imprisoned in the UK. Although alluded to by both judges, somewhat surprisingly a more in-depth examination of the analogy between a suspended sentence and a sentence under licence does not seem to have been analysed, however as both Clarke and Murray JJ discussed the possibility of a section 7(5) adaption, and that the 1995 Act concerns itself only with the custodial sentence this question may be unnecessary to examine. The implications of this are clear – a person sentenced to 16 years in the UK could well end up serving only 6 years in Ireland including 25% Irish remission, a possibility not discounted by the judgment. (As an aside this could even possibly be less given the decision in Ryan v Governor of Midlands Prison  IEHC 338 which ruled that there existed no reason why the higher one third rate of remission within order 59.2 of the Prison Rules 2007 shouldn’t apply in appropriate circumstances. Although this was overturned on appeal to the Supreme Court on the basis of misapplication by way of Article 40 procedure in Ryan v Governor of Midlands Prison  IESC 54 it still leaves the door potentially open for a correct application).
Most recently the Sweeney decision has again come to light in the Habeas Corpus Article 40.4.2˚ application in O’Farrell v Governor of Portlaoise Prison  IEHC 416 and O’Farrell v Governor of Portlaoise Prison [No 2]  IEHC 420. Here the appellant and two others were convicted of terrorism offences after travelling to Slovakia to buy weapons and explosives from agents whom they believed to be Iraqi arms dealers for the Real IRA but were in fact British security forces. They were sentenced to 28 years after extradition to the UK in 2002 under the Terrorism Act 2000 and were then transferred to Ireland on the basis of a warrant of the High Court on 28 July 2006 for the same 28 year sentence under the 1995 Act. Notably the appellant was convicted prior to the UK Criminal Justice Act 2003 and he would have been required to serve a two-third custodial sentence, and a third under licence, rather than the current two halves system. In the first action, Hogan J held that there was a defect on the face of the warrant in following the ratio of the Supreme Court in Sweeney and that the proper sentence was one of 18 years and 7 months and then adjourned the case for the respondent to apply to vary the section 7 order pursuant to section 9(1)(b) of the amending 1997 Act to properly reflect the sentence and amend the defective warrant, and reserved his judgment as to whether the court had jurisdiction to exercise variation of said warrant . In the second action, ordering the release of the appellant forthwith, through detailed examination of the legislative framework, Hogan J did critically note that the sentence could well have been adapted to fit Irish law under section 7(5) of the 1995 act rather than being continued as it was under section 7(4) of the same. He goes as far as to explicitly enunciate how the sentence could have been adapted, but is, as he says, ‘helpless to effect the curative action which would be necessary to remedy the defective warrant’.
By taking the Sweeney and O’Farrell decisions together, one can clearly see the consequentialism. It would be unfair to blame the courts for giving effect to the legislation rather than the State for not correctly adapting the sentences but, without the benefit of hindsight, the current result is that prisoners sentenced in the UK, and quite possibly elsewhere given the nuance of country-by-country criminal law, are not serving all of what was originally believed to be their sentences, whether by only serving the custodial sentence they are or are not fulfilling the original intended sentence handed down by the English or Welsh judge remains unclear. Many questions still surround whether or not the UK would originally have consented given the political nature of many of those transferred, or even would the State itself have consented. There is no doubt the State is now on notice to adapt the sentence of future applications accordingly, but given there are no hard figures as to how many people are affected by the Sweeney decision, future releases are most certainly not precluded. The issue of whether or not the UK will continue to consent to transfers remains to be seen, or prospectively if prisoners would be dissuaded from applying for transfer on the basis of how the State could adapt the custodial sentence without licence, nevertheless is it a quandary which shall be very interesting to follow as the jurisprudence develops in coming months.
Is mise le meas,
Cillian Bracken BCL (Law and German)
Daniel Watters is a PhD candidate in Queens University, Belfast. He holds an LLB from UUJ and an LLM from TCD. His current research in QUB centers around the use of criminal law in dealing with occurrences of violence between sports participants.
Over the last two years, Luis Suarez, a leading footballer in the Premier League, has been involved in two unsavoury acts committed on the field of play. In the same period of time, numerous similar acts have been reported and dealt with (very rarely satisfactorily) by the Gaelic Athletic Association (GAA).
The first of these incidents concerned the alleged use of racist language towards an opposing player. A complaint was made by Patrice Evra, alleging that Suarez had made a racist remark to him during the course of a match. The incident was investigated by the FA and submissions were made by both sides. The inquiry was chaired by a leading Queen’s Counsel in England and a full 115 page report was released by the FA two months after the alleged incident took place. The report contained all details of the investigation, submissions by both sides, expert evidence regarding the alleged abusive words, the main factual disputes, the charge, the penalty and finally the conclusion of the inquiry team. The final result was that Suarez was found guilty of the charge against him, fined £40,000 and also handed an eight game ban from football.
In the GAA world over the last two years, there have been numerous racial incidents reported. Lee Chin, dual inter-county star for Wexford, was racially abused by two opposing players during a match in 2012 and both players were suspended for the minimum of eight weeks each. There was no publication of an official report or transcript of the investigation into the incident. Neither was any reasoning provided to explain the sanctions imposed on the players.
A more worrying example is that of Aaron Cunningham. During a match against Kilcoo, Cunningham alleged that he was the victim of abuse by two opposing players. An initial investigation by the Ulster Council led to bans of six and four months for the players. On appeal, the six month ban was reduced to four months while the four month ban was rescinded. As with the previous case, there was no written report published regarding the investigation or the appeal. Such a lack of transparency will not only deter future players from playing the game, it could also lead to players looking elsewhere for justice, such as making a complaint to An Garda Siochana or the Police Service of Northern Ireland which is a rare occurrence due to the ‘sporting omerta’ that players currently adhere to.
The second Suarez incident concerns him biting an opposing player during a live televised game in April 2013. The FA charged Suarez with violent conduct and decided that the standard three game ban was insufficient and applied for a longer ban. As a result of the FA inquiry he was handed a ten game ban by the independent panel and a report, this time twenty-one pages long, was published by the FA.
Two biting incidents were reported this year in the Irish media concerning the GAA, yet no transparency is evident. The first concerned Paddy McBrearty, an All-Ireland winner with Donegal in 2012. At half-time of a match against Dublin in April 2013, McBrearty told the referee he had been bitten. Afterwards he was examined by the Donegal medical team and subsequently went to a hospital for precautionary blood tests. As a result of this incident, the Central Competitions Controls Committee (CCCC) proposed a three game ban for the offending Dublin player; Kevin O’Brien. The Dublin County Board refuted the allegation and appealed the decision. McBrearty was asked to attend the appeal but choose not to, and as a result of his absence the Central Hearings Committee (CHC) cleared O’Brien of any wrongdoing. This led to a bitter war of words between the Donegal manager and the GAA. The Donegal manager Jim McGuinness said that the committee had all the evidence they needed to prove the allegation, while the President of the GAA accused Donegal of not seeing the matter through. Once again, there was no report released by the CCCC or the CHC on the actual investigation or the reasoning for their respective decisions.
The second biting incident occurred in May 2013 and resulted in the victim requiring stitches for a wound to his ear. Anthony Gaynor, the perpetrator, received a twenty week ban for his part in this assault. Gaynor never attended the hearing or appealed the decision but the father of the victim called for a minimum suspension of a year for such a ‘serious and despicable act’. Like the previous cases mentioned, there was no report published by the Cavan County Board who advised it is their policy not to publish the outcome of disciplinary hearings.
The major issue that arises here is one of transparency and consistency regarding investigations and disciplinary hearings in the GAA. The GAA is essentially a professional organisation running an ‘amateur’ sport. It is time that the powers that be within the organisation give the players and administrators an effective and transparent disciplinary system, similar to the FA procedure. While it is acknowledged that there are differences between the FA and the GAA, the FA procedure represents best practice regarding conducting inquiries into incidents on the pitch and the subsequent publication of inquiry reports and reasons behind disciplinary decisions. While a 115 page report may not be necessary in GAA, a simple five to 10 page document outlining the charge, the arguments for and against, the decision and reasoning for the decision would improve players’ trust in such proceedings.
All four of the incidents that occurred during GAA matches could potentially lead to criminal prosecutions (criminal charges were brought against John Terry in England for alleged racism and Suarez was interviewed by police following the bite). Luckily for the offenders and the GAA, no such action was pursued. However, if players aren’t happy with the internal sanctions imposed it is only a matter of time before external measures are resorted to. Such measures could have very serious repercussions for the future of the GAA.
Is mise le meas
Thomas L Muinzer is a legal researcher based at the Law department at Queen’s University Belfast. Mr Muinzer holds Masters Degrees in Environmental Law and Legal Science, both from QUB. At present he is a PhD researcher engaged in investigating the development of modern UK climate law in the context of Northern Ireland and the UK’s other devolved regions. In this letter he takes an opportunity to peek over the North/South Irish border in order to offer comment on the condition and trajectory of climate law in the Republic of Ireland at the present time.
A fully referenced version of the letter is available here.
Climate change is a matter of significance for each and every person living on the island of Ireland, to say nothing of the wider world beyond. The science behind the issue runs as follows. A stock of greenhouse gases present in the earth’s atmosphere traps a portion of the sun’s heat and duly contributes to the warming of the planet. Since the inauguration of the modern industrial revolution human activity has been contributing radically to an increase in this atmospheric stock through the sustained burning of fossil fuels. The scientific community has identified a correlation between this anthropogenic (i.e., human-induced) increase in the stock and an associated increase in global warming. It is this global warming that in turn produces the anthropogenic climate change with which climate law is chiefly concerned.
A young but developing web of climate law is beginning to manifest across the international community in an effort to both mitigate and adapt to the effects of this climate challenge. In particular, the United Nations Framework Convention on Climate Change (UNFCCC) came into force in 1994 and has presently been ratified by 195 countries. The UNFCCC establishes in law the duty to redress the dangers posed by climate change, and in doing so places an onus upon developed nations – the most abundant contemporary and historic emitters – to lead the way in an international emissions reduction drive. In 1997 the Kyoto Protocol committed nations listed in Annex I to the UNFCCC to specific greenhouse gas reduction targets for the period 2008–2012. The European Union (EU) received an aggregated target under these arrangements, and within the target bubble Ireland was obligated to cap its greenhouse gas emissions at a maximum 13% increase on 1990 levels. The compliance period expired in 2012 and a second phase is presently in negotiation.
The EU has emerged as a positive supporter of robust emissions reduction. Whilst pushing for progress at the international level it has simultaneously implemented its own internal strategies. By 2020 the EU has legally obligated itself to achieve: a 20% reduction in greenhouse gas emissions from 1990 levels; a 20% increase in renewable energy; a 20% improvement in energy efficiency. Under this framework energy generation and heavy industry in Ireland have become subject to an EU Emissions Trading Scheme (ETS). Ireland is also required by 2020 to source 16% of its gross final energy consumption from renewables and to reduce non-ETS emissions by 20% from 2005 levels.
Notwithstanding their mandatory adherence to the EU’s supranational climate framework, Ireland and the other EU Member States are nonetheless afforded significant room to manoeuvre, and Ireland has successfully brought some semblance of its own national character to domestic climate law. Most recently, in February of last year Ireland’s outline Climate Action and Low Carbon Development Bill 2013 was published. Hearings on the document were conducted in July 2013. The outline proposes to obligate the Government to establish both a series of plans designed to plot out Ireland’s transition away from greenhouse gases and a national roadmap that paves the way toward a low carbon 2050. A stream of progress reports is to be laid before Dáil Eireann, and an Expert Advisory Body on National Climate Change is to be created. If sufficient support is forthcoming the proposals will be developed into Ireland’s first major climate statue. This Act would approximate in Irish terms to the United Kingdom’s Climate Change Act 2008 (CCA 2008).
The UK’s CCA 2008 constitutes that most endangered of legal species, a genuinely impressive national climate statute. The Act represented the first major example in the world of one country placing upon itself robust long term legally binding greenhouse gas emissions reduction targets, and its provisions presently commit the UK to reductions of: 80% from 1990 levels by 2050; 34% from 1990 levels by 2020. It establishes a pan-national carbon budgeting framework in order to realise these objectives in practice and bolsters the process with an intricate set of reporting arrangements and the establishment of an independent advisory Committee on Climate Change.
A recent in-depth study by Irish and UK environmental policy expert Peter Doran has scrutinised the outline Irish Bill and juxtaposed its framework with the CCA 2008. The research convincingly concludes that in failing to establish long term legally binding reduction targets, and in thus lacking a carbon budgeting / comparable reduction system designed to meet those targets, and in further failing to establish an independent climate change committee that can exist at a remove from political wrangling and associated influences, the present Irish legislative agenda is comparatively weak.
What concluding observations might be drawn here? In truth, Ireland seems to be making a reasonable effort to keep pace with its EU obligations, and the outline climate Bill does not significantly undermine those reasonable efforts per se. Yet one also wonders what concluding observations John Tyndall (1820-1893) might draw, were he alive today. Remembered as ‘one of the outstanding scientific personalities of the Victorian age’, Tyndall’s experiments profoundly contributed to the modern understanding of global warming: he remains ‘deservedly credited’ by history ‘with establishing the experimental basis for [the] “greenhouse effect”’, and the UK’s distinguished Tyndall Centre for Climate Change Research is today named in his honour. Born and raised in County Carlow, perhaps ‘calling to the mind’s eye’ the memory of this genuinely remarkable Irishman might embolden the vision of Ireland’s legislators. No longer content with mere reasonable efforts that falteringly endeavour to toe a common-denominator EU baseline, perhaps they might craft climate law that excels those standards and thereby helps to set another remarkable Irish example to the world.
Is mise le meas
Thomas L Muinzer