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
Damian Clifford graduated from the University of Limerick in 2009 (LLB Law and European Studies) and the Universite Jean Moulin (Lyon 3) in 2010 (LLM International and European Law) before spending two years working in online policy enforcement. He is currently enrolled in the LLM in IP and E-law at UCC and is an ELSI Bursary holder.
The enforcement of copyright online has become an increasingly important and controversial issue. Finding effective means of protection has been difficult with legislators left scrambling in the wake of open source development and free access sharing services. The seemingly limitless powers of the online community to mobilise responses and circumvent controls has resulted in a frustration of traditional legal norms. Indeed the P2P data sharing problem that exists today was in some respects a direct response of the digital community to the targeting of host servers. The recent decision of the French Administrative Authority (Hadopi) to discontinue the disconnection of digital infringers of copyright has once again brought the questions regarding proportionality, legality and effectiveness of this mechanism to the fore. In my opinion this area is ready for reform and, given its already questionable legal basis; it is time to move to a more balanced approach.
The motivations behind these schemes are obvious. The internet presents a jurisdictional nightmare with users capable of transferring content across the globe virtually instantaneously. Disconnecting service is a means of targeting infringing users even when the other user(s) or software creator is located outside the jurisdiction. It is a cost effective and speedy means of enforcement which aims to change the persistent public acceptance of this activity. As such, it aims to act more as a deterrent than an actual punishment with the disconnection of only repeat offenders.
Nevertheless, the legal foundations of this enforcement means have presented polarised views on legitimacy and have exposed concerns regarding data protection and privacy. Currently in Ireland the position is somewhat unclear with only one Internet Service Provider (Eircom) enforcing this process through an arrangement with copyright holders in a ‘three-strikes’ graduated format. The case law and judicial opinion present an outdated and ineffective viewpoint on IP and fail to grasp the changes required in the digital age. What is evident is that the courts and the legislature are clearly more inclined to balance these issues in favour of the copyright holder, despite the reservations of many leading academics and public perceptions.
I hold many of the same concerns specifically relating to the legitimacy of the schemes, the proportionality of the punishment and concerns over potential breaches of fundamental rights, due process and data protection legislation. Judicial opinion in this jurisdiction is in sharp contrast to the French Constitutional Court’s decision regarding the adoption of Hadopi I. The legal issues highlighted by this case (as discussed in the various decisions of the both the UK and Irish courts) have presented a rigid dichotomy between the ‘new’ and ‘old’. Aside from the arguments regarding legality, the effectiveness of the mechanisms is also in doubt. In the UK delays, in no small part due to judicial review, mean that it will be 2014 at the earliest before the first warnings are sent to customers, a whole 4 years since the adoption of the Digital Economy Act. Given the rapidity of change and development one must question the influence this process will have upon its introduction. Clearly the French decision to abandon this form of enforcement reflects its decreasing relevance in the fight against online abuse of IP rights. In furtherance of this effectiveness argument one must also acknowledge the increasing availability of public access networks. Indeed, circumventing suspension does not require a lot of imagination arguably rendering this punishment virtually ineffective.
Furthermore, the response to the threat posed by the use of IP addresses as a means of discovering the offline identity of users has been swift. Many bit-torrent software services are now implementing means of masking IP addresses and this migration to non-IP based methods of transfer effectively renders tracking of infringing behaviour impossible. Accordingly, given the more recent developments in software development it appears logical that the more technically savvy a user is the less likely they will be discovered infringing copyright. In an Irish context, as the recent Irish Data Protection Commissioner case has shown (EMI Records (Ireland) Ltd & Ors -v- The Data Protection Commissioner & Anor  IEHC 264 and its confirmation in the Supreme Court), even without these developments accuracy remains an issue. Requiring ISPs to provide information on their customers raises concerns regarding the accuracy of the information received and the time committed to a balanced and legitimate investigation of accusations. One must be highly sceptical of the genuine legitimacy of this mechanism especially regarding the de facto switching of the burden of proof. I am concerned that efficiency and cost concerns have become the primary motivating factors superseding accuracy.
In essence enforcement is a fight against a ruthless hydra with the monster changing tactics and the point of attack with each severing counter-measure. As technology advances, a better method may be to consider a more collaborative solution and rather than isolating users, include them in finding of an answer tailored for the digital age. The constant battle between infringers and copyright holders reflects the need for a coherent system that can adapt to the dynamic nature of the industry. Lobbying by groups representing copyright holders has perhaps had too great an influence over the development of legal safeguards, and it is now time for a more inclusive and comprehensive approach. If lawmakers continue down the same well-trodden path the effectiveness concerns will re-emerge.
The developments in France highlight deficiencies and have given the Irish legislature an opportunity to form a more settled approach regarding the enforcement of IP rights in this jurisdiction. I believe it is time to modernise the approach and adjust the mechanisms of enforcement to deal with these dynamic issues. Ireland has failed to adopt an effective response resulting in a somewhat heavy handed approach to enforcement. Indeed as the idiom goes ‘if your only tool is a hammer then every problem looks like a nail.’ Thus, reform is needed and I believe the solution lies in user influenced coding that can be constantly adapted and not static legislation. However, the means of achieving this are unclear and therefore the future of this area remains uncertain.
Damian Clifford LLB, LLM, LLM (Candidate at UCC)
A fully referenced version of this letter is available here.
‘Two months ago the tragedy in Lampedusa triggered a very wide and emotional reaction across Europe – a chorus of voices calling for actions to avoid such disasters in the future. I trust this impetus has not vanished. Today we are putting on the table measures and proposals for a truly European response that can make a difference. I call on Member States to make full use of this unique opportunity to show that the EU is built on solidarity and concrete support. Now is the time to act’, Cecilia Malmström, EU Commissioner for Home Affairs (4 December 2013)
The moral, political and legal complexities of humanely addressing the question of how to protect those fleeing persecution, violence and poverty were once again thrown into stark relief by the 11 October 2013 sinking of a boat containing migrants in the waters between Lampedusa and Malta. Despite the media coverage of the tragedy disappearing from our screens, the long-term impacts of such events within Europe remain to be tackled. Over 260 people are now known to have lost their lives when the crowded boat they were travelling in from Libya sank in the Mediterranean. Yet this is simply the most recent and large-scale example of the immense risks that, wittingly or unwittingly, thousands of refugees and other migrants seeking protection face in their attempts to reach the perceived safety of Europe.
Following the upheavals caused by the Arab Spring and armed conflicts in Libya and Syria, the past few years have unfortunately seen an increase in the number of people attempting to cross the Mediterranean in crowded and unseaworthy vessels. The challenges of accessing European protection and migration mechanisms has driven many into the dangerous clutches of people smugglers and traffickers, who often have scant regard for the lives and safety of those they are transporting. Yet the responses by European authorities to the victims of such smugglers and traffickers have also faced severe criticism. In February 2012, the Grand Chamber of the European Court of Human Rights ruled against Italy in the case of Hirsi Jamaa and others (27765/09), holding that the actions of the Italian authorities in intercepting and ‘pushing back’ migrants from Italian waters constituted a violation of Article 3 ECHR (due to the risk of ill-treatment in Libya, and subsequent risk of repatriation to Somalia and Eritrea), and also Article 4, Protocol No. 4 concerning the prohibition of collective expulsion of aliens.
This judicial ruling was quickly followed by the Council of Europe’s damning report on the so-called “left-to-die boat” incident. In that case, a boat containing 72 migrants left Tripoli on 26th March 2011 during the height of the conflict in Libya, and was washed up on the Libyan shore 15 days later with only 10 survivors. Following intensive investigations, the Parliamentary Assembly of the Council of Europe identified a catalogue of failures by the Libyan and Italian authorities in response to the boat itself, and the lack of preparation for such attempts to flee Libya by NATO member States in the planning and execution of their armed intervention. The report highlighted that both the Italian and Maltese authorities were aware that a boat was in distress within the zone of water which fell within the responsibility of the Libyan authorities for search and rescue activities under the International Maritime Search and Rescue Convention. Considering the on-going armed conflict in Libya at the time, it was reasonable to assume that the Libyan authorities may not have been in a position to assist such a vessel. Furthermore, as the Italian authorities were the first to be informed of a boat in distress, they held a greater responsibility to ensure the boat’s rescue.
The frustration of Tineke Strik, Rapporteur of the Parliamentary Assembly of the Council of Europe, was obvious following a newspaper investigation into the 11th October 2013 tragedy which described the unwillingness once again of the Italian and Maltese authorities to take responsibility for the boat once they were informed of its predicament. While acknowledging the Italian and Maltese authorities eventually rescued 212 people, Mrs. Stirk asked: ‘what about the 200 persons who drowned? Could not their lives have been saved if lessons had been learned from the 2011 incident that I investigated?’
Against this background, the recent announcement by the European Commission of concrete actions in response to the Lampedusa tragedy deserves a cautious welcome. The EU Justice and Home Affairs (JHA) Task Force established at the October 2013 JHA Council meeting has set out five areas for priority action which can broadly be grouped into three themes: increased surveillance and border control measures; legal migration options; and co-operation with third countries. The Task Force has proposed increased use of the recently established European Border Surveillance System (EUROSUR) which includes use of satellites and drones to provide better imagery of the external borders of the EU, in conjunction with the Frontex European Patrols Network. Likewise financial support and solidarity measures are intended to provide funding for EU Member States such as Italy for, inter alia, border surveillance operations; while Europol is to be given a stronger role and resources to co-ordinate EU activities in the fight against people smuggling and trafficking.
In addition to the surveillance and crime prevention aspects of the Commission’s proposals, the question of the extremely low levels of resettlement of recognised refugees into the EU as a whole has been acknowledged. As noted by the Commission, in 2012 only 4,930 refugees were resettled into the EU (by only 12 of the 28 Member States) while during the same time the USA resettled over 50,000 people. Such refugee resettlement programmes should be complemented by new legal channels for migrants to access the EU both for temporary and permanent stays. Finally, the proposals highlight the role that Mobility Partnerships with countries such as Tunisia and Azerbaijan can play in identifying channels for regular migration, in conjunction with the establishment of regional protection regimes.
Within the context of this letter, it is not possible to examine each of these proposals in detail. Indeed, the debate surrounding the Australian ‘Pacific solution’ of denying entry onto Australian soil for asylum seekers and irregular migrants who arrive by sea should provide us with serious cause to examine the best methods of ensuring access and safety to our shores for those unable to access regular methods of migration or protection. However, a focus on border control and crime prevention can only be one part of a holistic European strategy to address the perils faced by migrants crossing the Mediterranean. Arguably the increased land border controls between Greece and Turkey have consequently pushed more migrants into the hands of people smugglers and traffickers at sea. While the EU’s recognition of the need for increased legal avenues for those fleeing persecution, violence and poverty is to be welcomed, such calls have been made repeatedly since the conflict in the former Yugoslavia in the 1990s. So while concerted efforts must be made to arrest and detain those actively profiting from people smuggling and trafficking, serious measures also need to be introduced to make the latest proposals for increased refugee resettlement and legal migration channels a reality across the EU. Likewise, EU Member States must take collective responsibility for the protection of vulnerable migrants. This implies financial and physical burden sharing between all Member States, as well as true co-operation between those States at the front line to ensure that vessels in distress are provided with prompt and effective assistance as soon as possible. Otherwise, we will be condemned to repeat the failures of the past and more deaths will occur within European waters.
Dr Dug Cubie, Lecturer in Law, Faculty of Law, UCC
The Need for Recognition of a Right to Adequate Housing to Vindicate the Rights of Local Authority Tenants
Claire-Michelle Smyth graduated from NUIM with a BA in Psychology and from Griffith College Dublin with an LL.B in Irish Law and an LL.M in International Human Rights Law. She is currently a PhD Candidate at Queens University in Belfast researching the justiciability of social and economic right through the European Convention on Human Rights.
As Ireland spiralled into the economic abyss, the swollen waiting lists for social housing bulged. Those in need of social housing languished on the ever increasing file burdened with an inability to pay private sector rents due to continued decreases in rent supplement. While the spotlight focused on this undoubtedly serious issue it was shifted away from the fact that once a property is allocated, that does not necessarily spell the end of hardship for the Local Authority tenant.
Just as there is no right to be housed recognised within the Irish system, there is likewise no right to adequate housing. Therefore there is no guarantee that the property designated to Local Authority tenants will be of an acceptable standard compared to private rented accommodation.
In the landmark case of Siney v Dublin Corporation the Court declared that there was an implied warranty in the agreement between the tenant and the housing authority that the accommodation was fit for human habitation. Further in Burke v Dublin Corporation the Court considered an issue whereby a child tenant contracted asthma as a result of a conversion of the heating system. The Supreme Court held that there was a continuous obligation on the Corporation to inspect the system and to fix any defects. Chief Justice Finlay went on to hold that it was an implied warranty of fitness for human habitation in the contract which included that the property would be capable of being healthily, safely and properly heated.
Despite these court rulings, the fact remains that many Local Authority tenants reside in sub standard accommodation which are clearly not fit for human habitation. The tragic death of Rachel Peavoy in her flat in January 2010 brought the plight of many Local Authority tenants once again to the fore. Ms Peavoy resided in a block of flats in the Ballymun area of Dublin which was the subject of a regeneration project. The vast majority of flats had been vacated and as a result of this the Council conceded that the heating may not have been working efficiently. Ms Peavoy died of hypothermia while she slept in her flat during the coldest month in Dublin for 45 years. The adequacy of the heating was not something that was discussed, despite the ruling in Burke, when the Coroner returned a verdict of death by misadventure.
At a recent Human Rights Law Conference I heard one of the residents of the Dolphin’s Barn flats speak about their ongoing struggle with the Local Authority to remedy serious and dangerous defects within their properties. Residents of this development have been living in damp and mould infested conditions for over two decades. More recently raw sewage has been entering the properties through sinks, baths and washing machines. An independent report in 2010 found that the sewage was toxic and harmful to health and a further report in 2011 confirmed that the mould spores were also harmful to health. Surveys of those living in these conditions found a high percentage of the residents suffer from some form of pulmonary disease which can be directly or indirectly attributed to the living conditions.
While these conditions are extreme, they unfortunately are not unique among council and social housing tenants with 28% of tenants stating that there were significant issues relating to adequate heating and dampness in their property.
Why then are tenants of the Local Authorities living in such deplorable conditions? The answer lies in the rights afforded to them. With the right to adequate housing outside the remit of the courts, it falls to the legislature to determine what rights tenants have. The protection afforded to private tenants by way of the Residential Tenancies Act 2004 expressly excludes social housing tenancies.
The Housing (Standards for Rented Houses) Regulations 1993 provide that properties must meet a certain minimum standard of structural soundness and amenity provision. Article 5(2) provides that they must be ‘(e)ssentially sound, with roof, floors, ceilings, walls and stairs in good repair and not subject to serious dampness or liable to collapse because they are rotted or otherwise defective.’
This regulation was expressly incorporated into the Residential Tenancies Act 2004 by section 12(1) which refers to the regulations and incorporates them into the Act. In addition, it is not possible for a landlord to contract out of these minimum standards requirements, which will override any conflicting clause in a lease or tenancy agreement. However, as social housing tenancies are expressly excluded, they do not have the benefit of this minimum standard.
Where a private tenant is living in substandard accommodation they have options, they may leave or take a claim to the Residential Tenancies Board to enforce their Landlord’s obligation to maintain a minimum standard. Local Authority tenants do not have those options. If they leave their tenancy they will not get any State assistance and will effectively become homeless. They are excluded from the provisions of the 2004 Act and have no forum to have their grievances independently adjudicated upon.
It is quite clear that until there is recognition of the right to adequate housing in Ireland as a fundamental human right, there will continue to be long waiting lists and sub standard accommodation for clients of Local Authorities.
Is Mise Le Meas,
Claire-Michelle Smyth B.A, LL.B, LL.M, PhD Candidate at Queens University Belfast.
Keith Winters BCL, LLB, is a graduate of University College Cork. Since completing his LLB in 2012, he has gone on to gain extensive experience working in the areas of financial regulation and compliance. Mr Winters is currently involved in the design and innovation of new systems in risk management and strategic planning for Credit Unions. This places him in a prime position to explore the issues that led to the recent high profile High Court order which allowed for the transfer of assets from Newbridge Credit Union to Permanent TSB. This decision has resulted in much scrutiny of our Credit Unions’ systems, which in turn uncovered some worrying practices, and highlighted a certain need for change. In his letter below, Mr Winters will reflect on contributing factors and proposed responses, to the regulatory and compliance issues that Credit Unions are now facing.
Given the recent spate of coverage in national and local media regarding the Irish credit union sector, and having worked in a legal and risk capacity with a credit union over the past year, I thought it might be useful to relay some of my own reflections on the issues facing a movement that has become so deep-rooted in the Irish psyche.
On the evening of the 10th of November 2013 the High Court, in dramatic fashion befitting the prospect of a ‘run’ on deposits at a financial institution, convened a late night sitting which ultimately resulted in the Court giving its approval of an application by the Central Bank to use its powers under the Central Bank and Credit Institutions (Resolution) Act 2011 in directing the transfer of the assets of Newbridge Credit Union Ltd. (NCU) to Permanent TSB.
This is the first time that a credit union has been taken over by a bank in Ireland and while the precedent is theoretically a worrying one for those within the Irish Credit Union movement it is unlikely to be replicated across the sector. NCU presented the Central Bank with a particular set of problems whose scale is not mirrored to the same degree among the one-hundred or so credit unions (of 392) that have been identified as requiring closer supervisory scrutiny. For other credit unions in trouble it is unlikely that a course of action as severe as has been taken with NCU will be necessary with the voluntary transfer of engagements into more stable anchor credit unions being the preferred route. The political repercussions of the NCU transfer will be unknown until the depth of the problems within credit unions are addressed in the context of the new regulatory arrangements.
The legal issues that have arisen as a result of the meteoric rise and fall of NCU are beyond the scope of this letter, and are in any event too raw and fresh to be adequately analysed at this time. Whether NCU’s failure was imminent and whether such a failure would have spread contagion across the credit union sector and the wider financial services sector is a matter of debate, but the Court was convinced by the Central Bank’s speculation in making its decision, a decision which seems to be rooted primarily in political considerations resulting from Ireland’s imminent departure from the EU/IMF bailout programme.
Notwithstanding the legal issues at play, the NCU story is itself a microcosm of the now jading and oft-told tale of the Irish financial institution that outperformed its peers, grew exponentially and ultimately lost the run of itself during the Celtic Tiger years, before coming crashing down to earth following the disappearance of a make-believe economy built solely on the sandy foundations of an overheated property market. The principal difference here though, is that NCU, as a credit union subscribed to an ethos at variance with that of the for-profit banking sector, and because of that ethos its difficulties should never have reached the point where a bailout of such magnitude was required.
One of the contributing factors to NCU’s demise rests undoubtedly in a huge governance failing on the part of the credit union as detailed in the High Court by the affidavit of the Head of Resolution at the Central Bank, and while the problems in NCU may have been amplified compared with its peers, the standards of governance within credit unions have and still vary considerably from institution to institution. It cannot be denied that there was also a significant failure in the regulation of the sector, which persisted up until the commencement of the bulk of Credit Union and Co-operation with Overseas Regulators Act 2012 (CUCORA) in October 2013. In the years when the seeds of instability were sown in the sector the Financial Regulator failed to adequately reign-in delinquent boards of directors, which stemmed from a combination of light-touch regulation and the fact that the Regulator’s powers of enforcement and sanction were virtually non-existent.
This failure to effectively regulate credit unions allowed them an environment where it was acceptable for them to move away from their traditional community-based, small lending model and flirt with commercial lending practices more at home in the banking sector than a member-owned and member-run not-for-profit organisation. Equally, some credit unions were so flush with cash that their investment strategies began to elevate return-on-investment over risk, which had some devastating consequences, most notably for those credit unions who were unlucky enough to stay the course with custom-made bonds sold by Anglo Irish Bank, which was, incidentally, an A-rated bank at the time. Peculiarly credit unions became, and remain, the only Anglo bondholders to have been ‘burned’.
Of course not all credit unions got involved in reckless lending practices, nor did all credit unions make risky investments, but it does seem to have been far more common than is widely believed. Unfortunately, this loose control of credit unions often led to the availability of cheap and easy credit as well as the delivery of a generous dividend on members’ shares each winter. Happy members were understandably acquiescent to such loose practices and tended not to question the governance arrangements or underwriting surrounding the extension of credit and dividends. As a result lots of credit unions overextended their loanbooks and neglected their capital positions. Once we hit the late 2000’s the global financial meltdown contagion spread and the Irish property market shuddered to a halt; people were quickly out of jobs, arrears mounted, consumption decreased, loan-demand dissipated, investments crashed, and the poor governance structures within credit unions made it difficult for them to respond to the series of systemic-shocks effectively, thus compounding their many problems.
In the wake of such a lax approach to governance within some credit unions and such poor supervision of them, an assertive approach to resolving the issues within the sector is essential in ensuring that there remains a strong and viable movement within Ireland. Many of the problems that exist within the sector today stem from inadequate supervision of these organisations run voluntarily, and they could and should have been avoided by better regulation with an effective enforcement regime. Unfortunately what we have now with the coming into force of CUCORA is a more complex and disjointed regulatory regime, introduced nearly all at once and applied with near-universally with a severe lack of clarity to a sector used to what must have seemed like self-regulation.
The new regulatory framework has the right goal – that of bringing credit unions into line with the standards of governance expected of institutions of their size – but the end does not justify the means, unless of course, there is a genuine desire on the part of the Central Bank to see the sector being put under so much pressure that its very existence is jeopardised. Falling loan-books and increasing arrears across the sector are being stressed further by an expected drop in investment income for credit unions as a result of their reclassification under Basel III, and that’s before credit unions even begin to realise the unfavourable effects of being unsecured lenders under the new personal insolvency regime.
Following the final Report of the Commission on Credit Unions, published in the Spring of 2012, the Government published the Credit Union Bill 2012 which was enacted as CUCORA. This piece of legislation has introduced sweeping changes to the governance arrangements within Irish credit unions and aims to provide for the professionalisation of credit union management while at the same time refocusing directors’ energies on mapping out the strategic direction and vision for their institutions.
These changes of focus are underpinned by new fitness and probity standards for staff and volunteers introduced under the Central Bank (Reform) Act 2010 as well as a requirement under CUCORA for credit unions to appoint a manager, compliance officer, risk management officer, internal audit function as well as having in place a strategic plan. The distinction is definitively made between the day-to-day management, or executive function of the credit union, and the governance function as exercised on behalf of the members by the board of directors, which should ensure that the day of volunteers being involved in the minutiae of how the credit union office functions, is gone.
The rules on who can do what within the credit union have also been tightened with more of an emphasis on a separation of duties. All these things make absolute sense but the approach to implementation is unrealistic at best and reckless at worst. All of these requirements are already obligatory for credit unions (with the exception of those with total assets below €10million) and are causing huge strains on boards and management who fear the prospect of the Registrar of Credit Unions making use of her new enforcement powers. The Commission Report spoke at length about a tiered approach to regulation; alas it never materialised in CUCORA and credit unions are suffering as a result.
In addition to the aforementioned internal requirements CUCORA introduced the Credit Union Restructuring Board, or ReBo, which has been established to facilitate the voluntary restructuring of the sector. Sharon Donnery, the Registrar of Credit Unions, has made it quite clear that she has no agenda in consolidating the sector, but rather, that her mandate as a regulator is to implement the Commission’s proposals using the regulatory machinery now available to her. From the point of view of good regulation a consolidated credit union sector with less but larger credit unions will certainly be easier to supervise, and it should be easier to ensure that those involved in the running of credit unions meet the necessary standards as the movement recovers, grows and consolidates.
Credit Unions accept the need for better regulation but argue that this could be achieved with a more even handed approach, and I have to say I agree. Fortunately from what I have seen, Ms. Donnery seems like she will have a common sense approach to enforcement, but the law is the law and credit unions are going to find compliance a huge issue. While this will mean changes for Credit Unions as we know them, for the many law students among COLR’s readers, it may well create an alternative future career path.
Is mise le meas,
Katie Boyle qualified as a solicitor with the Government Legal Service for Scotland. She was the previous recipient of the Anna Lindh Fellowship from the Department of Foreign Affairs in Ireland in connection with her doctoral thesis, ‘Viable and Legitimate Justiciability Mechanisms in relation to Economic, Social and Cultural Rights for the Particular Circumstance of Northern Ireland’. She currently lectures in International Human Rights Law at the University of Limerick, and is an ESRC Research Fellow at the University of Edinburgh, Scotland.
In this Letter to the Editor, Katie Boyle explores the existing human rights framework in Northern Ireland and asks what further human rights protection mechanisms might be introduced to encourage the full transition from war to peace in a society emerging from protracted conflict in accordance with the commitments set forth in the 1998 peace agreement.
A fully referenced version of this letter is available here.
It is some fifteen years since the historic signing of the peace agreement in Northern Ireland. The intervening years have experienced huge momentum in the nurturing and cultivation of a shared future on the island of Ireland. There are, however, issues that remain to be addressed. In particular, I would draw your attention to the commitments set forth in the peace agreement in relation to human rights. Recent reports indicate an increase in violence and civil unrest in the North and there are increasing calls in the literature and civil society for Northern Ireland to deal with the legacy of the past. Indicators that might provide helpful in measuring the transition from conflict to peace, and the obligations of the British and Irish Governments who also signed a bilateral international treaty, would therefore be to measure whether there has been increased protection of human rights in accordance with the commitments stated in the peace agreement. In my view, it is crucial to continue to monitor the transition in Northern Ireland as any retrogression in the protection of human rights, or a failure to fully realise the commitments towards the progressive protection of human rights, would most certainly undermine a very fragile peace.
One of the main commitments in the peace agreement was to incorporate the European Convention of Human Rights 1950 (the Convention) into domestic law. This commitment materialised through the enactment of the Human Rights Act 1998, which extends across the whole of the United Kingdom, and through the Northern Ireland Act 1998 (the NI Act), which applies to the jurisdiction of Northern Ireland and sets out the framework of the devolved settlement. Under devolution, the Northern Ireland Assembly, a subordinate legislative authority, has been granted the power to legislate on matters which are transferred to it by the UK Parliament. The UK Parliament, as the primary legislative authority for the whole of the United Kingdom, retains competence to legislate on all other matters. Similar devolution settlements exist in Scotland and Wales.
The Human Rights Act ensures compliance with Convention rights through a number of mechanisms. These include the duty of public bodies including the courts to comply under section 6, thereby creating a wide reaching obligation, and the duty to interpret legislation as compatible with human rights in so far as it is possible to do so under section 3. The NI Act provides further safeguards in securing substantive protection of Convention rights by granting such rights quasi-constitutional status within the devolved settlement. For example, section 6 of the NI Act limits the legislative competence of the Northern Ireland Assembly in so far as any Act of the Assembly passed that is incompatible with Convention rights is ultra vires. If the legislation is ultra vires it is therefore no longer legally valid ie it becomes non binding with immediate effect on a finding of the court that it is in breach of Convention rights.
The power of the court to declare legislation ultra vires under section 6 of the NI Act can be compared with the declaration of incompatibility approach applicable in the rest of the UK. When an Act of the UK Parliament is deemed incompatible with Convention rights, the court will make a declaration of incompatibility under section 4 of the Human Rights Act 1998. There is an equivalent declaration available in the Republic of Ireland under section 5 of the European Convention on Human Right Act 2003. This declaration has no effect on the continuation of the incompatible law, which can only be remedied by the primary legislative authority. In this sense, the protection of Convention rights in NI is actually stronger under devolution because of the limits placed on the legislative competence of the devolved legislature in relation to Convention rights.
However, the Convention does not account for the full catalogue of human rights as declared and recognised in numerous international treaties. The Convention primarily focuses on civil and political rights. Both the UK and Ireland have acceded to numerous international human rights treaties which include rights beyond those protected in the Convention. For example, the International Covenant on Economic, Social and Cultural Rights 1966, the European Social Charter 1964, the Convention on the Rights of the Child 1989, the Convention on the Elimination of Discrimination Against Women 1979 or the Convention on the Elimination of Racial Discrimination 1965. These treaties contain internationally legally binding obligations to protect civil, political, economic, social and cultural rights.
The peace agreement also accounted for the future protection of rights supplementary to those contained in the Convention. In order to give expression to these supplementary rights, a mechanism through which these rights could be fulfilled was established. This was realised through the creation of the Northern Ireland Human Rights Commission (NIHRC). The NIHRC’s remit, amongst other things, was to advise on the scope for defining, through further Westminster legislation, a Bill of Rights ‘to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience.’ The NIHRC submitted its recommendations to the UK Government in 2008. There was no overwhelming response from the UK Government, which rejected the recommendations of the NIHRC. The process for a Bill of Rights for Northern Ireland was somewhat side-lined and later subsumed by the UK-wide consultation process on a Bill of Rights for the UK.
This was perhaps a missed opportunity that would have solidified the protection of supplementary rights envisaged in the peace agreement for the particular circumstances of Northern Ireland. Whilst violations of civil and political rights can be addressed through the current Convention framework, violations relating to supplementary rights in Northern Ireland, such as socio-economic rights, remain in a pre-peace process state of violation. There is therefore a gap in enforcement. The failure to fully address the commitments in the peace agreement in this regard remains a barrier to the full transition from war to peace. At the very least, it is critical that the democratic process to examine the option for the further protection of human rights in Northern Ireland should not be forgotten. In fact, it is in the most difficult of times that the substantive protection of human rights becomes all the more important. Both the UK and Irish Government must work towards encouraging and facilitating the deliberative discussion on how best to secure the indigenous human rights framework in Northern Ireland in order to avoid a return to the past.
It should be emphasised that this cannot happen without political consensus in the North. The process must also give a voice to those who are under-represented in the political system. Perhaps then the duty incumbent on the respective Governments would be to encourage the process rather than implement a top-down legislative framework. One option that has not yet been fully explored would be if the Northern Ireland Assembly itself enacted legislation which observed supplementary human rights obligations.This would be possible according to the legislative competence of the Assembly, and might encourage ownership of the process. For example, the Welsh Assembly recently enacted the Rights of Children and Young Persons Measure (Wales) 2011 which implements the duty to have due regard to the UN Convention on the Rights of the Child. Similar legislation could be passed by the Northern Ireland Assembly.
Other supplementary rights for consideration might include economic, social and cultural rights recommended by the NIHRC, such as the right to an adequate standard of living, the right to education or the right to adequate housing. Other rights might also include those relating to dealing with the past, such as the right to build a common narrative, the right to truth or reparations for victims which can take a number of forms – not just monetary.
There are a number of options available to ensure the better protection of human rights in Northern Ireland. I would argue that meeting the commitments adhered to in the peace agreement would facilitate the transition from war to peace in Northern Ireland. In order for this to happen in a democratic and legitimate manner it is necessary to have a transparent and accountable process where all interested parties, including the polarised communities and the most vulnerable and marginalised in society, are able to participate.
Is mise le meas
Stephen Daly graduated from University College Cork with a BCL (International) degree in 2012. As part of the degree, he spent one year as an Erasmus student at the University of Oslo, Norway. He read for an LLM at University College London and is currently undertaking a DPhil at Lincoln College, Oxford.
Having recently attended a preparatory course with the Institute of Incorporated Public Accountants in order to qualify as a Personal Insolvency Practitioner (PIP), a couple of fundamental oversights of the Personal Insolvency Act 2012 became alarmingly clear. The major policy issues have already been teased out elsewhere, sometimes as headline-grabbing stories, such as the fact that a bank can revisit a Personal Insolvency Arrangement up to 20 years post-discharge. More fundamental structural flaws will be examined in this letter.
Boland once hypothesised on a conversation between Lord Trevelyan and Colonel Jones, in a passage said to exemplify the British laissez faire attitude towards the Irish famine, ‘Might it be safe to give them roads, roads to force, from nowhere, going nowhere of course?’
In our instant economic case, it was not the British but Merkel et al, who gave us the current road that we are tumbling down. This road started with the Bank guarantee and paradoxically it was the point-of-no-return. Thus, there was no debt write-down in terms of our banks paying back the European banks. However the capitalist policy that we buy into states that something somewhere has to yield, and in this case, for reasons which the parameters of this letter do not permit exploring, our economic failure necessarily requires debt write-off. The Personal Insolvency legislation brought with it the opportunity to provide for the requisite write-down through a write-off of debt owed from individuals to the bank. The fact that the banks simply do not have capacity to deal with the level of write-down required is one primary reason why the Personal Insolvency legislation will not be the panacea to economic recovery. But other fundamental flaws in the structure of the 2012 Act will soon surface.
The most pressing, from the opinions of my experienced accounting colleagues, is the provision that there must be ongoing payment of Revenue liabilities throughout the duration of the voluntary agreements. Trouble arises if, and when, the rates of liability are changed by any budget during the duration of the agreement. In the case of a Personal Insolvency Arrangement (PIA), this could be up to seven years. However the agreed monthly payments to each of the insolvent’s creditors are expressed upon commencement of the agreement at a fixed rate. A change in any of the numerous taxation rates be it PRSI, PAYE, VAT, etc. will completely compromise the insolvent’s ability to make these agreed upon monthly payments.
Other matters, which may seem primarily cosmetic, also appear to have been ignored. For instance, in order to get a Protective Certificate, essentially a prerequisite for a PIA or Debt Settlement Arrangement (DSA), there is an upfront court fee of €650. Under UK law, which our legislation often reflects, this fee is waived. In the case of a financially distressed individual, this upfront payment may simply not be possible to make. As one colleague noted ‘sure these guys don’t even have the money to put diesel in their cars!’
Whilst the foregoing could be boiled down to oversights, the next comment derives from a purposeful policy consideration. The legislation provides that a Bank may vote both as a secured creditor and an unsecured creditor on a PIA, hence potentially allowing them to skew an agreement to satisfy their needs. The PIP is given little choice in such an instance but to yield to their demands. This will arise in a situation where the Bank is the largest of an insolvent’s creditors with a fixed charge over a property which is in negative equity. This is not a particularly difficult eventuality to envisage, given that a large portion of the applicants for PIAs will be individuals with family home mortgages in negative equity. The bank, following agreement with the PIP, will be deemed to have secured debts to the current market value of the home, with unsecured debts to the value of the outstanding amount of the mortgage (known as the ‘relevant portion’). A proposal put forward to creditors in the case of a PIA requires a 65% approval of creditors, including a majority vote of both secured and unsecured creditors. Thus, an agreement can be approved if the bank votes in favour, as both a secured and unsecured creditor. Disgruntled creditors meanwhile will just have to grin and bear it.
In the analogous instance of a scheme of arrangement for companies under s. 201 of the Companies Act 1963, a bank as the largest creditor of a company would not be permitted to vote as both secured and unsecured creditor. A scheme of arrangement can only be pushed through if there is a majority favouring the proposal in the case of each class of creditor whose rights are affected. In this case, the bank would form its own individual class given that its rights are so distinct from other creditors, in that it has both secured and unsecured claims, as was found in Re Telewest Communications . Thus, the other affected creditors, unlike in the case of a PIA, would not be so unceremoniously crammed down. The essential point therefore is that the legislation is unduly and unprecedentedly, in the case of insolvency law, skewed to the interest of a single group, namely, the banks. Need we recall again who is paying for the debts of these banks?
Bringing matters to a more personal level, the consensus amongst my colleagues is that an accountant is not merely a professional introduced a few times a year to fill out forms, but a confidant and business consultant, more familiar with an individual’s personal financial circumstances than anyone else. Accountants will know what an individual’s income is, where it comes from, where an individual holidays, and hence, if he is hiding any assets. Financially distressed individuals may, for reasons which may seem legitimate to themselves, try to keep assets away from their creditors. Thus, the accountant will be the person best positioned to be the PIP of an insolvent. But the position of the Insolvency Service is that an accountant may not act as PIP for a client. This practically incoherent policy produces a higher cost for PIPs as the further level of due diligence will have to be carried out.
These foregoing comments, rooted in practical considerations, do not come from the mouth of this law student but from experienced practitioners who see a clearer picture of the daily struggles of distressed individuals. The power that has been left in the hands of the banks meanwhile is overwhelming. For this writer, the Personal Insolvency legislation accordingly is more a distraction from our problems than the panacea for change. Alas, we continue to trundle down our Troika-instigated famine road:
‘Sedition, idleness, cured in one. From parish to parish, field to field; the wretches work till they are quite worn, then fester by their work. We march the corn to the ships in peace.’
Is mise le meas,
Stephen Daly BCL (Int), LLM (Lond), DPhil (Oxon)(Cand.)
Mr Seán Columb holds an LLM in Human Rights and Criminal Justice from Queens University Belfast and is currently a PhD candidate in QUB where his research is focused on organ trafficking. His work is based on international, regional and national law and policy. He looks at how the organ trafficking industry has developed and in particular, how legal and policy issues pertaining to property rights in terms of the body permit the organ trafficking industry to continue to grow.
A fully referenced copy of the letter is available to view here.
The organ trade is at once a criminal justice issue, a human rights concern and an ethical conundrum, which calls into question the legitimacy of the transplant industry and the capacity of the legal system to respond, control and prevent medical malpractice and the trafficking of persons for their organs. In response, legislative action has concentrated on increasing the donor pool by various means, to offset the demand for illegally sourced organs. However this only addresses part of a much broader issue grounded in economic inequity, manifest in divergent social and cultural values.
The global trade in organs is represented as being symptomatic of the ‘global crisis in organs’, where the demand for organs has outreached supply to the extent that transnational criminal networks are now involved in the organisation and commission of trafficking in persons for organ removal. Various reports and accounts of this new form of trafficking construct a common narrative whereby impoverished donors are deceived into selling an organ, in most cases a kidney, for use in transplantation. Brokers invariably use their position of power/authority to manipulate, deceive and/or coerce ‘vulnerable persons’ into selling their organs. Live donors are then typically trafficked to a medical facility where they are detained, if necessary, before having their organ(s) removed by unscrupulous medical professionals.
Accordingly, efforts to regulate the organ trade have looked at ways to reduce the global shortage of organs and to prosecute the various actors (i.e. brokers, transporters, corrupt border officials, medical professionals etc.) involved in the trafficking process. At the international level, the World Health Organisation (WHO) Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010), the Declaration of Istanbul on Organ Trafficking and Transplant Tourism (2008) and the Council of Europe Convention on Human Rights and Bio-medicine (1997) all prohibit organ sales, while promoting altruistic and deceased donation. The ‘removal of organs’ is included in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) as a form of exploitation. More recently a draft Council of Europe Convention against Trafficking in Human Organs has been developed ‘to prevent and combat the trafficking in human organs by providing for the criminalisation of certain acts’.
While it is important to recognise organ trafficking as an international crime, understanding the organ trade as an issue of human trafficking in itself is an insufficient response. Moreover, the emphasis on increasing the donor pool as a means to offset the demand for organs is paradoxical insofar as it ignores the socio-economic conditions that perpetuate demand. The organ trade is dynamic, context based and linked to wider social, cultural and economic factors. For instance, while a shortage of organs for transplantation may be represented as a global issue, the implications of this apparent ‘crisis’ are radically different depending on one’s locality. In a country like Moldova, for example, where the average monthly salary is well below the European average, the shortage of organs is not a problem associated with national demand but rather supply. Considering the economic reality of the global South (where organ trafficking is reportedly most active) it would seem more prudent to invest available capital into primary health care rather than expensive bio-technologies, such as transplant medicine, that the majority of people simply cannot afford.
Increasing the donor pool in countries where transplant medicine is only available through privatised healthcare is not likely to benefit less privileged populations. Rather this will encourage the wholesale demand of transplantable organs, particularly in countries where cadaveric organ donation is opposed on religious or cultural grounds. Essentially legislation needs to develop according to the specific context in which the phenomenon is situated. Simply co-opting the organ trade into the human trafficking discourse resists a wider critique of the phenomenon linking the emergence of a global market in organs to neoliberal globalisation and its discontents, i.e. ageing populations, diseases of affluence that have increased demand for organs, and privatised health care. Furthermore, a delimited emphasis on law enforcement and criminal sanction ignores the contested notions of autonomy rights, consent and exploitation that belie the efforts of policymakers and advocates in response to this issue. For example, although organ trafficking is now a recognised international crime, it remains unclear as to how exactly the ‘removal of organs’ becomes a criminal act or how prima facie a consensual agreement to sell an organ becomes exploitive and subsequently a trafficking offence.
At present little is known about the prevalence or nature of organ trafficking. Much of what we do know is based on anecdotal accounts that betray an empirical objectivity for a biased subjectivity. Clearly then more evidence based research is needed to illuminate the multi-sited complexity of this phenomenon and to determine the actual scope of this problem. In doing this the challenge for the law is to clarify the boundaries between medical progress and ethical practice; and to identify the ambiguities in current legislation that facilitate the global trade in organs.
Mr Sean Columb BA, H.Dip.Soc.Pol., LLM.
Is leachtóir í an Dochtúir Noelle Ní Uiginn san Ionad Éireannach um Chearta Daonna. Tá dhá céim mháistir aici, ceann amháin sa Dlí agus ceann sa Ghaeilge agus bhí sí ina Ánra ar Cuairt san Institiúid Dlí Idirnáisiúnta agus Dlí Comparáideach na Breataine sa bhliain acadúil 2009-2010 agus ina ball den Bhuanchoiste um Chearta an Duine na Roinne Gnóthaí Eachtracha/ Eagraíochtaí Neamhrialtasach (DFA/NGO) sa bhliain acadúil 2010-2012. Sa litir seo, pléann an Dochtúir Ní Uiginn an gá práinneach le h-aitheantas oifigiúil a thabhairt do lucht siúil na hÉireann a gcearta a chosaint agus meas a tháispeáint dá gcultúr.
[Dr. Noelle Higgins is a lecturer at the Irish Centre for Human Rights. She has masters degrees in both Law and Irish was a visiting fellow at the British Institute of International and Comparative Law during the academic year 2009-2010 and a member of the Department of Foreign Affairs/NGO Human Rights Committee 2010-2012. In this letter, Dr. Higgins discusses the urgent need to recognise the Traveling Community as a minority group in Ireland in order to protect their rights and respect their culture.]
A Eagathóir, a Chara,
Meastar go bhfuil thart ar 25,000 ball den lucht siúil in Éirinn sa lá atá inniu ann. Is ionann sin agus 0.5% den daonra iomlán. Mar sin, is mionlach de facto iad an grúpa seo i measc na nÉireannach. Mhair an lucht siúil ar imeall na sochaí Éireannaí leis na céadta, áit a maireann siad fós. Tá stair, cleachtais chultúrtha, teanga agus modh maireachtála dá gcuid féin acu a idirdhealaíonn na daoine seo mar ghrúpa mionlaigh. Ar ndóigh, is í an ghné idirdhealaithe is suntasaí ná a mian fánaíochta. Seo nós nach dtagann le struchtúir an Stáit, agus nós, dá bharr, nach n-eascaíonn an rialtas go héifeachtach maidir le polasaithe oideachais, tithíochta, sláinte, ná leis an gcóras leasa shóisialaigh srl. I láthair na huaire níl bunriachtanais uisce, leictreachais ná sláintíochta ag go leor den ghrúpa, fadhb a chruthaíonn deacrachtaí tromchúiseacha sláinte. Ina theannta sin, caithfidh baill den lucht siúil aghaidh a thabhairt ar chiníochas, eisiamh sóisialta agus idirdhealú ar bhonn laethúil maidir le cúrsaí fostaíochta srl.
Ach, cé gur grúpa mionlaigh de facto iad an lucht siúil, níl an rialtas sásta aitheantas mar ghrúpa mionlaigh de jure a bhronnadh orthu. Úsáideann an rialtas an téarma ‘grúpa sóisialta´ ina dtaobh, téarma nach bhfuil bonn dlíthiúil leis i gcóras dlí na hÉireann, ná go hidirnáisiúnta, ar chor ar bith. Mar sin, níl an grúpa seo in ann brath ar ionstraimí agus forálacha dlíthiúla idirnáisiúnta a thugann cosaint do mhionlaigh agus a bhfuil mar aidhm acu stádas grúpaí mionlaigh a chur chun cinn agus a chothú, m.sh. an Cúnant Idirnáisiúnta um Chearta Sibhialta agus Polaitíochta agus an Creathchoinbhinsiún Eorpach um Chearta do Mhionlaigh Náisiúnta. Cuireann na hionstraimí seo dualgais ar Stáit grúpaí mionlaigh reiligiúnda, eithneacha agus teanga a chosaint ó idirdhealú agus neamhchothromaíocht. Tá an dá ionstraim seo daingnithe ag Éirinn cheana féin ach mar nach n-aithníonn an rialtas an lucht siúil mar ghrúpa mionlaigh, faraor ní féidir le baill den lucht siúil a gcearta faoi na hionstraimí seo a bhaint amach.
Tá aitheantas mar ghrúpa mionlaigh fíorthábhachtach don lucht siúil ar go leor bealaí. Chomh maith leis na cearta a bheadh le baint amach, tá gné thábhachtach shóisialta ag baint leis freisin. Thabharfadh aitheantas don lucht siúil le fios go bhfuil meas ag an rialtas ar an ngrúpa agus go dtuigeann sé go gcuireann oidhreacht agus nósanna an lucht siúil le cultúr na hÉireann. Chabhródh sé seo, ar ndóigh, le féinmhuinín a chothú nó a láidriú i measc an lucht siúil. Má thuigtear go bhfuil meas ar an ngrúpa seo agus go bhfuil a gcuid ceart mar ghrúpa mionlaigh á gcosaint ag an rialtas, chabhródh sé seo freisin le fadhbanna ciníochais a laghdú i measc an phobail.
Tá brú láidir á chur ar an rialtas ag eagraíochtaí neamhrialtais, m.sh. the Irish Traveller Movement, le blianta beaga anuas aitheantas ceart a thabhairt don lucht siúil mar ghrúpa mionlaigh. Agus ar ndóigh tá brú ag teacht ar an rialtas anois ó thíortha eile dul i ngleic le ceist an lucht siúil freisin. Is léir seo ó Athbhreithniú Tréimhsiúil Uilechoiteann Chomhairle na Náisiún Aontaithe um Chearta an Duine. Seo athbhreithniú ina gcuireann gach ball de na Náisiúin Aontaithe a bpolasaithe agus a ndlíthe maidir le cearta daonna faoi bhráid na Comhairle um Chearta Daonna gach ceithre bliana. Bíonn deis ag gach uile thír ceisteanna a chur ar thíortha eile maidir lena gcleachtais agus moltaí a dhéanamh ina dtaobh. Tháining Tuairisc na hÉireann faoi bhráid na Comhairle sa bhliain 2011 agus téama láidir amháin a bhí ag feiceáil sna ceisteanna agus moltaí seo i gcás na hÉireann ná an chaoi a gcaithtear leis an lucht siúil in Éirinn. Dhírigh go leor tíortha, m.sh. Poblacht na Seice, an tSlóvaic agus an tSile, aird ar dhroch-chás an lucht siúil maidir le cúrsaí oideachais, sláinte, títhíochta agus rannpháirtíochta. Mhol an tSlóvaic d’Éirinn freisin stádas mar ghrúpa mionlaigh a bhronnadh ar an lucht siúil ach dhiúltaigh an rialtas don mholadh sin.
Tá sé thar am anois don rialtas aird cheart a thabhairt ar stádas an lucht siúil agus aitheantas oifigiúil a thabhairt dóibh. Chabhraigh an tAthbhreithniú Tréimhsiúil Uilechoiteann tábhacht an ábhair seo a léiriú do gach uile thír sna Náisiúin Aontaithe agus brú a chur ar an rialtas athruithe a dhéanamh ar a pholasaithe i leith an ghrúpa seo. Is í an cheist anois ná an mbeidh aon athrú ar an scéal faoin am a thagann an chéad Athbhreithniú eile thart sa bhliain 2015?
Is mise le meas,
Dr Noelle Higgins,
An tIonad Éireannach um Chearta Daonna
A seven-judge Supreme Court, speaking through the Hon. Mrs Justice Susan Denham, Chief Justice of Ireland, has rejected the landmark appeal of Marie Fleming in her challenging of s.2(2) of the Criminal Law (Suicide) Act 1993, and the State’s blanket ban on assisted suicide. This letter seeks to highlight that two issues of notable importance can be deduced from the Supreme Court ruling in Fleming v Ireland. First, our current constitutional and legislative framework does not sanction assisted suicide, nor can this be altered through the forum of the superior courts. Secondly, it is also deductible from the judgment that tackling this ethical Goliath is not precluded from our legislators, if they see fit; the slingshot is firmly within the grip of the Oireachtas. Therefore, while the Irish courts have upheld the proscription of assisted suicide, they have also attempted not to determinatively close the door on its being potentially reformed in the future.
A whistle-stop tour of the case is merited. Marie Fleming is in the latter stages of multiple sclerosis, an immune-mediated inflammatory disease, and was seeking a declaration of incompatibility of the State’s ban on assisted suicide under the European Convention on Human Rights (ECHR). Secondly, arguing under Bunreacht na hÉireann, she essentially sought to establish that she had a right to die, a right which she was being denied through the State’s ban on assisted suicide, a ban which also contravened her unenumerated rights. Thirdly, she sought to establish that the State’s current ban on assisted suicide was perpetuating unjustified inequality in her personal circumstances (specifically by virtue of her having a disability). There was no appeal from the High Court ruling of Kearns P in relation to the role of the DPP, nor any purported obligation of the DPP to promulgate offence-specific guidelines.
The Supreme Court, having extensive reference to Pretty v UK, determinatively rejected Marie Fleming’s argument regarding the State’s obligations under Article 2 of the ECHR; a right to die could not be deduced from Article 2 of the Convention. The European Court of Human Rights jurisprudence of both Pretty and Haas v Switzerland was held to be determinative of this issue. This jurisprudence also vested a wide discretion in the State by virtue of Article 8 of the Convention (derogation from the ECHR in accordance with law) to address pertinent and divisive issues of social policy such as assisted suicide. Likewise, the Irish State was held to have exercised its wide discretion under Article 8 in this area of social policy by promulgating s.2(2) of the 1993 Act.
The Supreme Court held that the right sought under the Bunreacht, namely a right to die, was not explicit, and thus either had to be unenumerated, or deduced from another constitutional provision, of which it was held it could be neither. Traditional logical deductions, such as a right to dissociate from a right to associate, were held not to be applicable in this case, i.e. a right to die corresponding with the express right to life in Article 40.3.2. It was emphatically held that ‘[i]n the social order contemplated by the Constitution, and the values reflected in it, that would be the antithesis of the right rather than the logical consequence of it.’ Further, the Supreme Court acknowledged, having regard to seminal Irish unenumerated rights case law that such rights sought by Marie Fleming could be established at a sufficient level of abstraction, but such judicial discourse was not permitted with our current constitutional social order.
On inequality, what was held to be an objectively neutral law which has at its aim the vindication of Article 40.1, could not correspondingly violate the equality provisions of Article 40.1, by virtue of Marie Fleming being a person with a disability. As Marie Fleming had failed to establish a constitutional right to commit suicide, or have assistance provided in her wishes to commit suicide, there could thusly be no constitutional rights which s.2(2) of the 1993 Act could infringe. The Supreme Court declined to accede to Marie Fleming’s argument in this regard. The decision rejected every ground of her appeal, through reasoning which permitted the Court to avoid ruling on a separate proportionality argument. While leaving it open to the State to legislate with appropriate and necessary safeguards to encompass cases such as that at hand, the Court dismissed the appeal in this very tragic, ‘heartrending’ case.
This Supreme Court pronouncement is incontestably clear: our current constitutional and legislative framework does not sanction assisted suicide, nor can the courts be utilised to alter this. Libertarian arguments about how dirigiste we think the State should be were held not to be conducted within the confines of our courts; the social policy as set out by the Bunreacht precludes such judicial discourse. However, while the courts were held not to be the appropriate forum to undertake this reform, the Supreme Court has left it open to the Oireachtas to revisit s.2(2) of the 1993 Act in the future if it sees fit, which vests much confidence in the 31st Dáil.
Assisted suicide is amongst one of the most divisive issues affecting ethical and legal discourse within the realm of medicine internationally, not least in Ireland. The two primary facets of such debate are firstly, establishing a system which facilitates the tragic plights of individuals such as Marie Fleming, and secondly, equipping such a system with watertight safeguards operated with the highest standards of vigilance to ensure such a system is not utilised as a front for depraved eugenics. These are not inevitably irreconcilable goals. However, the courts are not an appropriate venue through which they can be achieved.
When the dust settles after this Supreme Court pronouncement, it should be acknowledged that while engaging in the assisted suicide debate under our current legal framework is effectively precluded, a reforming agenda can and should be undertaken elsewhere. In this time of potentially expansive constitutional overhaul in Ireland, it should be hoped that this case will not be forgotten, and will finally transcend discourse within Leinster House, not the Four Courts. It is only a progeny of this branch of State which will possess the suitable safeguards and nuances required to vindicate plights such as those of Marie Fleming, while also necessarily defending the most vulnerable in our society, those most susceptible to abuse of any such system, were the floodgates to burst.
Is mise le meas,